THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 289/2021
In the matter between:
EZULWINI MINING COMPANY (PTY) LTD                       APPELLANT
and
MINISTER OF MINERAL RESOURCES
AND ENERGY                                                                  FIRST RESPONDENT

MINISTER OF ENVIRONMENT,
FORESTRY AND FISHERIES

SECOND RESPONDENT

MINISTER OF HUMAN SETTLEMENTS,
WATER AND SANITATION

THIRD RESPONDENT

REGIONAL MANAGER: MINERAL
REGULATION GAUTENG REGION:
DEPARTMENT OF MINERAL RESOURCES FOURTH RESPONDENT

GFI JOINT VENTURE HOLDINGS (PTY) LTD   FIFTH RESPONDENT
GOLD FIELDS OPERATION LIMITED
SIXTH RESPONDENT
LUCKY FARMS PARTNERSHIP
SEVENTH RESPONDENT
Neutral citation: Ezulwini Mining Company (Pty) Ltd v Minister of Mineral
Resources and Energy and Others (Case no 289/2021) [2023] ZASCA 80 (30
May 2023)
Coram: Petse AP, Molemela and Makgoka JJA and Basson and Goosen AJJA

Heard:
24 November 2022
Delivered:  30 May 2023
Summary: Environmental Law – mining – whether mine operator has a
continuing obligation to pump extraneous water from underground mining area
notwithstanding cessation of underground mining activities – whether obligation
extends to closure of mine.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Fabricius J
sitting as a court of first instance):
Paragraph 1 of the order of the high court is set aside and replaced with
the following:
‘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.’
Otherwise, the appeal is dismissed with costs, including the costs of two
counsel.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
Goosen AJA (Petse AP, Molemela and Makgoka JJA and Basson AJA
concurring):
[1] Deep-level mining may require the management of extraneous water that
enters the underground mining area. Mine shafts are sunk from the surface
occasionally to great depths, in order to access rock seams containing mineral
deposits. As these mining areas are worked to extract the mineral-bearing rock,
voids are opened. Groundwater from higher and adjacent areas seeps through
fissures in the rock, under force of gravity, into the voids. When this occurs, the
extraneous water must be pumped out and discharged at the surface of the mine
in order to continue safely and effectively working these mining areas. Such
dewatering of the underground mining area is, in these circumstances, an

essential feature of underground mining operations affected by the ingress of
extraneous water.

[2]     The issue in the appeal is whether a mine operator’s obligation to continue
pumping extraneous water from underground mining areas, endures despite its
cessation of underground mining operations. The Gauteng Division of the High
Court, Pretoria (the high court) answered that question in the affirmative. It
consequently ordered the appellant, Ezulwini Mining Company (Pty) Ltd
(Ezulwini) to continue with such pumping, until the first respondent had issued
to it, a closure certificate in terms of s 43 of the Mineral and Petroleum Resources
Development Act, 28 of 2002 (MPRDA). Ezulwini appeals against that order,
with the leave of the high court.

[3]     Ezulwini is the holder of a mining permit and operator of a mine on the
West Rand of Gauteng (the Ezwulini mine), which it acquired from its
predecessor in 2014. The mine has been worked since 1961. The first, second,
and third respondents are the Ministers whose departments are, respectively,
responsible for the management of relevant legislation. The first respondent, the
Minister of Mineral Resources and Energy, is responsible for the MPRDA and
the Mine Health and Safety Act, 29 of 1996 (MHSA). The second respondent,
the Minister of Environment, Forestry and Fisheries, is responsible for the
National Environmental Management Act, 107 of 1998 (NEMA).  The third
respondent, the Minister of Water and Sanitation, is responsible for the National
Water Act, 36 of 1998 (the Water Act). The fourth respondent is an official in
the Department of Mineral Resources, based in Gauteng.

[4]   The fifth respondent, GFI Joint Venture Holdings (Pty) Ltd (GFI) is the
owner of a mine that is adjacent to Ezulwini mine. The sixth respondent, Gold
Fields Operation Limited (Gold Fields) is the operator of the mine owned by

GFI. I shall refer to them collectively as Gold Fields and to the mine as the Gold
Fields mine. The Gold Fields and Ezulwini mines are interconnected. The
underground connection has, however, been ‘plugged’ or sealed. The seventh
respondent, Lucky Farms Partnership (Lucky Farms) conducts a farming
operation in the vicinity of the surface operation of the Ezulwini and Gold Fields
mines. It draws water from a stream and groundwater resources for its farming
operation. It was cited for its interest in the matter. Of all the respondents, only
the Minister of Mineral Resources and Energy (the Minister) and Gold Fields
participated in the appeal, and opposed the relief sought by Ezulwini. Lucky
Farms filed a notice to abide in this Court, and thus also took no part in the
proceedings.

[5]   It was common ground that the pumping of extraneous water from the
underground works at Ezulwini has been carried out for many years by the
mine’s previous operators. Indeed, the dewatering of mines has occurred at many
mines operated on the West Rand. This has resulted in dewatering of basins,
which occur in the dolomite layers between the surface and the deep-level mining
areas. Ezulwini has, since it took over mining operations from its predecessor,
continued to pump extraneous groundwater from its underground mining areas.
The extraneous water is pumped to the surface where it is treated before being
discharged into natural water courses on the surface. Its pumping and treatment
of the extraneous water is licenced in terms of the Water Act.1

[6] In September 2016, Ezulwini discontinued its underground mining
operations as these were no longer economically viable. It has continued to
conduct certain operations involving the processing of mineral-bearing material

1 Section 21(j) of the Water Act defines a ‘water use’ to include ‘removing, discharging or disposing of water
found underground if it is necessary for the efficient continuation of an activity or for the safety of people’.
Ezulwini holds a licence issued in terms of this section.

at its surface mining area. In October 2017, Ezulwini applied to the fourth
respondent, for an environmental authorisation to cease the pumping of
extraneous underground water in terms of s 24 of NEMA (the NEMA
application). It also applied to the Provincial Head of the Settlements, Water and
Sanitation Department, for an amendment of its water use licence issued in terms
of the Water Act (the water use amendment application).

[7] In May 2018, Ezulwini’s NEMA application was refused. It lodged an
appeal against the refusal, to the first respondent. The appeal was upheld in part,
in that the application was remitted for reconsideration following a public
participation process.

[8] Neither the NEMA, nor the water use application has been finalised.
Acting upon legal advice to the effect that neither application was lawfully
required, Ezulwini brought an application before the Gauteng Division of the
High Court, Pretoria (the high court) seeking declaratory relief in regard to its
legal obligation to continue pumping extraneous groundwater from the
underground works (the main application). The main application was
commenced on 24 July 2019. The primary declaratory relief it sought was that
neither an environmental authorisation (in terms of NEMA), nor an amendment
to the water use licence is required to allow Ezulwini to cease pumping
extraneous underground water. It sought, in the alternative, an order authorising
it to cease the pumping, based on environmental, health and safety and cost
considerations. In the further alternative it sought an order to the effect that, if it
is obliged continue the pumping, Gold Fields should contribute to the costs of
such pumping, on the basis that it is continuing with underground operations at
its mine.

[9] In addition to opposing Ezulwini’s application alongside the Minister,
Gold Fields also filed a counter-application. As mentioned, the Ezwulini and
Gold Fields mines are inter-connected, although the inter-connection had been
sealed. Gold Fields’ counter-application was premised on that fact. in It sought
the following orders:
‘1.
Declaring that [Ezulwini] remains responsible for the pumping and treatment of
extraneous water from the underground workings of the Ezulwini mine until at least when the
[first respondent] has issued a closure certificate in terms of section 43 of the [MPRDA] to
[Ezulwini] or such longer period as contemplated in section 24R of [NEMA].
2.
Directing [Ezulwini] to take such steps as are necessary to maintain the shafts and
pumping infrastructure required for the pumping and treatment of the water from Ezulwini’s
underground workings where it has ceased mining for such period as it remains responsible
for the pumping and treatment of extraneous water.
3.
Directing [Ezulwini] to allow the Fifth and Sixth Respondents access to the Ezulwini
mine for purposes of inspecting the condition of the entire Cooke 4 shaft and infrastructure
required for purposes of the pumping and treatment of extraneous water from the Cooke 4
shaft.’

[10] Gold Fields contended that Ezulwini’s proposed cessation of water
pumping had the potential that the seal of the connected underground areas could
fail. This would result in the Gold Fields mine being flooded with water from the
Ezulwini mine, resulting in significant health and safety risks to the mining
operations conducted by Gold Fields, especially to its employees.

[11] The matter came before Fabricius J in December 2020 and was decided
without oral argument, and judgment was delivered on 15 January 2021. The
learned judge determined the counter-application on the basis that it was
dispositive of the disputed issues between the parties. He issued a declaratory
order in terms of which Ezulwini remained responsible for the pumping and
treatment of extraneous water from the underground workings of its mine. This

would endure until at least when the first respondent has issued a closure
certificate in terms of section 43 of the MPRDA to it or such longer period as
contemplated in section 24R of NEMA. The high court dismissed the relief
sought in prayers 2 and 3 of Gold Field’s counter-application. Costs were
awarded in favour of Gold Fields.

[12] The issue on appeal, as it was in the high court, is a crisp one. Is Ezulwini
obliged in law to continue pumping extraneous water from its underground
mining works despite its cessation of underground mining? If so, when does the
obligation cease? The answer requires the interpretation of s 43 of the MPRDA
and s 24N of NEMA.

[13] The legislative framework regulating all aspects of mining and mineral
extraction has its origin and is intended to give effect to the rights enshrined in
s 24 of the Constitution.2 The primary legislative instrument to give effect to
s 24 of the Constitution is NEMA. It establishes a framework for the
authorisation of activities that impact or affect the environment, and for
management of such impacts so as to meet the objectives of s 24 of the
Constitution.3

[14] The concept of the ‘environment’ is broadly and extensively defined, in
line with the Constitution, to cover the ‘surroundings within which humans exist’
including physical, biological, and chemical elements, the interrelationship

2 Section 24 provides:
Everyone has the right─
(a)
to an environment that is not harmful to their health or well-being; and
(b)
to have the environment protected . . . through reasonable legislative measures that─
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development.
3 See Maccsand (Pty) Ltd v City of Cape Town and Others [2012] ZACC 7; 2012 (4) SA 181 (CC) para 9.

between them and the social, economic, and cultural properties and conditions
that influence human health and well-being.4

[15] Section 2 of NEMA provides for a set of principles that apply to the actions
of all organs of state that may affect the environment. These principles serve as
a general framework within which environmental management and
implementation plans must be formulated.5 They also guide the interpretation,
administration, and implementation of NEMA, and any other law concerned with
the protection or management of the environment.6

[16] NEMA provides for a system of environmental authorisation for specified
or listed activities. In order to obtain an environmental authorisation an
assessment of the impact of the activity must be undertaken. The authorisation,
when granted, generally requires the implementation of, and adherence to, an
environmental management plan.

[17] Mining and the extraction of mineral and other natural resources, is an
economic activity which self-evidently has extensive impact and effect upon the
environment. The MPRDA is the primary legislative instrument by which effect
is given to s 24 of the Constitution in relation to mining activities. Section 2(h) of
the MPRDA provides that its object is:
‘to give effect to section 24 of the Constitution by ensuring that the nation’s mineral and
petroleum resources are developed in an orderly and ecologically sustainable manner while
promoting justifiable social and economic development.’

4 Section 1 of NEMA; BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land
Affairs 2004 (5) SA 124 (W) at 145B-E.
5 NEMA s 2(1)(a).
6 NEMA s 2(1)(e).

[18] Chapter 4 of the MPRDA regulates the acquisition of mining and
prospecting rights and permits. In relation to environmental management, s 37
provides that:
‘The principles set out in s 2 of [NEMA],
(a)
apply to all prospecting and mining operations, as the case may be, and any matter or
activity relating to such operation; and
(b)
serve as guidelines for the interpretation, administration, and implementation of the
environmental requirements of this Act.’

[19] Section 38A of MPRDA stipulates that the Minister of Minerals and
Energy Resources (in this case the first respondent) is responsible for
implementing the provisions of NEMA that relate to prospecting, mining,
exploration and production or activities incidental thereto. Subsection (2) requires
that an environmental authorisation be issued by the Minister as a condition prior
to the issuing of a permit or granting of a right in terms of the MPRDA.

[20] The legislative scheme requires that an environmental authorization be
obtained for the commencement of mining activity or mining operations. To
obtain such authorization, an environmental management program (EMP) must
be submitted. Section 24N(2)(a) requires that the EMP must, inter alia, contain
information on any proposed management, mitigation, protection, or remedial
measures that will be undertaken. This includes environmental impacts or
objectives which relate to:
‘(i) planning and design;
(ii) pre-construction and construction activity;
(iii) the operation or undertaking of the activity in question;
(iv) the rehabilitation of the environment; and
(v) closure, if applicable.’

[21] What is envisaged therefore, is that the conduct of the authorized operation
is subject to prior assessment of potential impacts and management in accordance
with the EMP. The reference to closure plainly refers to mining activities.
Subsection 3(b) requires that the EMP must, where appropriate,
‘contain measures regulating responsibilities for any environmental damage, pollution,
pumping and treatment of polluted or extraneous water or ecological degradation which may
occur inside and outside the boundaries of the operation in question.’

[22] Section 24N(7)(c) obliges the holder of an environmental authorization,
to manage all environmental impacts -
‘(i) in accordance with his or her approved environmental management programme, where
appropriate; and
(ii) as an integral part of the prospecting or mining, exploration, or production operation, unless
the Minister responsible for mineral resources directs otherwise.’

[23] The provisions of NEMA require that all environmental impacts which
arise from the conduct of mining operations are managed in accordance with an
approved EMP or as an integral part of the production process. They also require
that the holder plans for closure. This is specifically stated in s 43(8) of the
MPRDA. The effect is that all mining operations are subject to environmental
management throughout the life cycle of such activity. It accords with s 2(e) of
NEMA which embodies the principle that:
‘Responsibility for the environmental health and safety consequences of a policy, programme,
project, product, process, service or activity exists throughout its life cycle.’

[24] Section 43 deals with mine closure. Subsection (1) states that the holder of,
inter alia, a mining permit,
‘. . . remains responsible for any environmental liability, pollution, ecological degradation, the
pumping and treatment of extraneous water, compliance to the conditions of the environmental
authorisation and the management and sustainable closure thereof, until the Minister has issued
a closure certificate in terms of this Act to the holder or owner concerned.’

[25] The section imposes an obligation upon the holder of a mining permit to
apply for a closure certificate in specified circumstances. These include the
cessation of mining operations.7 It provides for a set of procedures to be followed,
and the submission of information, plans, and reports as required by the MPRDA
and NEMA.8 Section 43(7) requires that the holder of a mining permit must plan
for, manage, and implement such procedures and requirements at mine closure as
may be prescribed. These are provided for in the Mineral and Petroleum
Resources Development Regulations.9 Regulation 57 specifies what is required
upon submission of an application for a closure certificate. This includes a closure
plan and an environmental risk report. A closure plan must include, inter alia:
‘(f)
a description of the methods to decommission each prospecting or mining component and the
mitigation or management strategy proposed to avoid, minimize, and manage residual or latent impacts.
(g)
details of any long-term management and maintenance expected.’10

[26] Section 43(8) states that procedures and requirements as they relate to
environmental authorisation for mine closure are prescribed in terms of NEMA.
These include sections 24N, 24P and 24R and the Regulations pertaining to the
Financial Provision for Prospecting, Exploration, Mining or Production
Operations, 2015 (the Financial Provision Regulations).11 For present purposes it
is not necessary to deal with these regulations. It suffices to note that they deal
extensively with a holder’s post-closure obligations. The closure plan submitted
upon application for closure, must also set out details of the closure costs and
financial provision for maintenance and post-closure management as provided in
the Financial Provision Regulations.

[27] Section 43(5) states that:

7 MPRDA s 43(2)(b).
8 MPRDA s 43(4).
9 Mineral and Petroleum Resources Development Regulations, GNR446 in GG38855 (3 June 2015).
10 Ibid Regulation 62.
11 Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining or Production
Operations, GNR 1147 in GG 39425 (20 November 2015).

‘No closure certificate may be issued unless the Chief Inspector and each government
department charged with the administration of any law which relates to any matter affecting
the environment have confirmed in writing that the provisions pertaining to health and safety
and management [of] pollution to water resources, the pumping and treatment of extraneous
water and compliance to the conditions of the environmental authorisation have been
addressed.’

[28] It is in the context of this legislative scheme and in the light of the purposes
it seeks to achieve that s 43 of the MPRDA and s 24N of NEMA must be
interpreted. The approach to interpretation of statutory instruments is, by now,
well settled and it is unnecessary to repeat the much-cited passage from Natal
Joint Municipal Pension Fund v Endumeni Municipality.12 It is a unitary exercise,
not a mechanical consideration of text, context, and purpose.13 More recently its
essence was expressed by Unterhalter AJA in Capitec Bank Holdings Limited and
Another v Coral Lagoon Investments 194 (Pty) Ltd and Others as follows:
‘It is the language used, understood in the context in which it is used, and having regard to the
purpose of the provision that constitutes the unitary exercise of interpretation. I would only add
that the triad of text, context and purpose should not be used in a mechanical fashion. It is the
relationship between the words used, the concepts expressed by those words and the place of
the contested provision within the scheme of the agreement (or instrument) as a whole that
constitutes the enterprise by recourse to which a coherent and salient interpretation is
determined. . .’ 14

[29]    The legislative purpose is to ensure that environmental impacts, whether
positive or negative, are identified, assessed, and managed. In the case of mining
activity this includes the impacts and consequences of all aspects of mining

12 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 18.
13 Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20; 2020 (10) BCLR 1173 (CC); 2020
(6) SA 14 (CC) para 52; University of Johannesburg v Auckland Park Theological Seminary and Another [2021]
ZACC 13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC) para 65.
14 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021]
ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25.

operations. It is to achieve this purpose that the cessation of mining operations
and the closure of a mine is extensively regulated.

[30] Ezulwini contended that it is under no legal obligation to continue the
pumping operations to remove extraneous water seeping into its now unworked
underground mining area. It asserted that the pumping operations were not
undertaken pursuant to an imposed obligation, but in order to dewater the mining
area, as a necessary adjunct to its mining activity. It obtained a water use licence,
in terms of the Water Act, as it was required to do. The water use licence
conferred upon it a right of use. It does not, it argued, oblige it to exercise such
right.

[31] In regard to s 43 of the MPRDA, Ezulwini argued that the section
establishes liability only, and does not impose any obligations. The section, it was
submitted, must be read with s 24R of NEMA, which deals with mine closure
upon environmental authorisation and s 24P which requires financial provision
for remediation of environmental damage. None of these provisions, according to
Ezwulini, imposes an obligation to pump extraneous water. Ezulwini is entitled,
so it was argued, to cease such pumping because it has ceased underground
mining operations.

[32] Counsel for the Minister submitted that the obligation to pump extraneous
water does not arise from s 43(1) of MPRDA, but pursuant to s 24N(7)(f) of
NEMA. Ezulwini is the holder of a mining permit. Its mining operations are
authorised in terms of an approved EMP. This constitutes an environmental
authorisation. The section provides that:
‘(7)
The holder and any person issued with an environmental authorisation─
. . .

(f)
is responsible for any environmental damage, pollution, pumping and treatment of
polluted or extraneous water or ecological degradation as a result of his or her operations to
which such right, permit or environmental authorisation relates.’

[33] It was argued on behalf of the Minister that the need to pump extraneous
water arises because of the inherent conditions under which the mining operations
occurred. The seepage of water into the underground mining area, is a
consequence of the mining operations, which open voids into which the water
flows. The cessation of pumping will, over time, result in the mining voids being
filled. That process necessarily impacts the immediate mining areas and the
dolomite formations above the mine. Whether such impacts are positive or
negative, is, for present purposes, irrelevant. They are impacts which flow from
the cessation of mining operations and, therefore, fall within the ambit of the
regulated process of mine closure. Gold Fields supported the position advanced
by the Minister, save that it argued that upon a proper interpretation, s 43(1) also
imposes an obligation upon Ezulwini to continue to pump extraneous water from
the mine until permitted to cease pumping by an environmental authorisation
issued for mine closure.

[34] Sections 43(1) of the MPRDA and 24N(7)(f) of NEMA both employ the
phrase ‘responsible for . . . the pumping and treatment of extraneous water’.
Section 43(1), stripped of unnecessary words not relevant for the present,
provides that, ‘the holder of a mining permit remains responsible for . . . the
pumping and treatment of extraneous water . . . until the Minister has issued a
closure certificate.’ The word ‘responsible’ in its ordinary meaning means
‘having an obligation to do something’, or ‘having control over something or
someone’. It also means, being the cause of something, or having to account for
or be answerable for something or to someone. It covers a broader ambit than the
word ‘liable’. The latter, in its ordinary sense, connotes that which is obligated

by law. It is, by definition, a narrower concept. The phrase ‘pumping and
treatment’ when used with ‘responsible’ suggests responsibility for the activity
of pumping and treatment of water.

[35] As indicated, Ezulwini contended that s 43(1) of the MPRDA deals with
legal liability, which persists until a closure certificate is issued. It does not
impose an obligation and cannot be construed as imposing an obligation where
no antecedent obligation existed. (Emphasis added). There are several difficulties
with the argument. Section 43(1) addresses the status of obligations of a holder
of a mining permit as they exist during the operation of the mine. It directs that
the holder remains responsible. The use of the adjective form ‘responsible’ and
its noun ‘responsibility’, is to be contrasted with ‘liability’ used elsewhere in s
43. Subsection (2) provides that ‘the Minister may ‘transfer such environmental
liabilities and responsibilities’ as may be identified as a closure plan to a person
suitably qualified. In subsection (12), which addresses the closure of
interconnected mines of which social, health and environmental impacts are
integrated, the Minister may apportion liability for mine closure.

[36] Subsection (1) also makes use of the two concepts of responsibility and
liability. It does so because it deals with both legal obligations and activities.
Pumping and treatment of extraneous water is one such activity which remains
the responsibility of a holder until mine closure.15 Section 43(1), when read in

15 The word ‘mine’ has a defined meaning in terms of s 1 of the MPRDA. When –
‘(a) used as a noun, it means:
(i)
any excavation in the earth, including any portion under the sea or under other water or in any residue
deposit, as well as any borehole, whether being worked or not, made for the purpose of searching for or winning
a mineral;
(ii)
any other place where a mineral resource is being extracted, including the mining area and all buildings,
structures, machinery, residue stockpiles, access roads or objects situated on such area and which are used or
intended to be used in connection with such searching, winning or extraction or processing of such mineral
resource . . . ;

(b) [When] used as a verb . . . it includes any operation or activity which is incidental [to the mining or extraction
of a mineral].’
‘A ‘mining operation’ is defined to mean ‘any operation relating to the act of mining and matters directly
incidental thereto.’

conjunction with subsections (4), (5), (7) and (8), obliges the holder of a mining
permit to submit its mining operations to regulated closure. Section 24N(7)(f) of
NEMA is to similar effect.

[37] In this case Ezulwini undertook the pumping of extraneous water from its
underground mining area. The pumping was an essential and integral component
of its underground mining operation. It can hardly be suggested that the ingress
of extraneous water was not an impact of the act of mining underground. Ezulwini
managed the impact during its production operations by pumping extraneous
water, treating it, and discharging it on the surface. It was authorized to do so in
the light of its approved EMP and its water use licence.

[38] It can also not be suggested that the cessation of pumping will have no
impact upon the immediate physical environment of the underground mining
area, or that of the adjacent underground environment. On the contrary, the
cessation of pumping will result in a significant impact: the mine will fill with
water and, in time, the dolomitic voids above the mine, from which the ground
water has drained, will fill. This impact plainly requires full and proper
assessment before it occurs, as is required by the mine closure process.

[39] Section 43(5), it should be stated, cannot be given effect to where pumping
of extraneous water is stopped before the procedures for closure have been met.
The subsection envisages that ‘provisions pertaining to the pumping and
treatment of extraneous water’ must be stipulated in the closure process. If not,
the Chief Inspector would not be able to confirm that they ‘have been addressed’.
It cannot be the case that a mine operator who for operational reasons has pumped
extraneous water from its mine works, may simply cease pumping, and then allow
the mine to fill with water without assessment of the consequential impacts. Such
an interpretation of s 43 of the MPRDA and s 24N of NEMA would give rise to

absurdity. It would, in my view, conflict with s 2(4)(vii) of NEMA, which serves
as a guiding principle of interpretation. That principle requires that:
‘a risk-averse and cautious approach is applied, which takes into account the limits of current
knowledge about the consequences of decisions and actions.’

[40] This Court rejected a similar argument in Harmony Gold Mining Company
Ltd v Regional Director: Free State Department of Water Affairs and Others.16
In that matter a directive had been issued in terms of s 19(3) of the Water Act,
requiring Harmony, which managed gold mining operations on behalf of a
landowner, to take anti-pollution measures in respect of water contamination
caused by the mining operations. The entire mining operation and the land were
sold to another entity, which assumed the obligations imposed upon Harmony.
When that company went into liquidation, Harmony resumed its obligations.
Harmony, however, took the position that since it no longer had any connection
to the land, the directive was unenforceable against it since it was not the
landowner. It requested the directive to be withdrawn. When that was refused, it
unsuccessfully challenged the decision on review. On appeal, this Court held that,
‘An interpretation that does not impose the limitation on the Minister’s powers under ss (3)
contended for by Harmony is consistent with the purpose of the NWA (reducing and preventing
pollution and degradation of water resources); accords with the NEMA principles that pollution
be avoided or minimized and remedied and that the costs of preventing, minimizing, controlling
and remedying pollution be paid for by those responsible for harming the environment; and
gives expression and substance to the constitutionally entrenched right of everyone to an
environment that is not harmful to health or wellbeing and to have it protected through
reasonable measures that, amongst others, prevent pollution and ecological degradation.’17

[41] Ezulwini argued that its expert assessment was that allowing the
re-watering of the mine and the aquifer and dolomitic voids, would be the best

16 Harmony Gold Mining Company Ltd v Regional Director: Free State Department of Water Affairs and Others
[2013] ZASCA 206; [2014] 1 All SA 553 (SCA); 2014 (3) SA 149 (SCA).
17 Harmony para 25.

possible environmentally sensitive approach. Whether that is so or not is, for
present purposes, of no relevance. The assessment of such an impact and any risks
which may flow from it is a matter to be addressed in the process of mine closure.

[42] Upon a proper interpretation of s 43(1) of the MPRDA and s 24N of
NEMA, Ezulwini is obliged to continue to pump and treat extraneous water from
its underground mining areas until authorized to cease pumping in accordance
with the procedures for mine closure.

[43] This brings me to the ancillary question raised in the appeal, namely, when
the obligation ceases. The question arises because the order of the high court
incorporated a reference to s 24R of NEMA.

[44] Section 24R of NEMA has as its heading ‘mine closure and environmental
authorisation’. It provides:
‘(1)
Every holder, holder of an old order right and owner of works remain responsible for
any environmental liability, pollution or ecological degradation, the pumping and treatment of
extraneous water, the management and sustainable closure thereof notwithstanding the issuing
of a closure certificate by the Minister responsible for mineral resources in terms of the
[MPRDA] to the holder or owner concerned.
(2)
When the Minister . . . issues a closure certificate, he or she must return such portion of
the financial provision contemplated in section 24P as the Minister may deem appropriate to
the holder concerned, but may retain a portion of such financial provision referred to in
subsection (1) for any latent, residual or any other environmental [impact], including the
pumping of polluted or extraneous water, for a prescribed period after issuing a closure
certificate.’

[45] Section 24R (1) of NEMA, in contrast to s 43(1) of the MPRDA, however,
at face value, extends responsibility beyond the issuing of a closure certificate.
Counsel for Ezulwini argued that, in the first instance, the section relates to the

provision of financial guarantees for remediation of environmental damage. A
mine owner is required to make financial provision at the stage that a mining
permit is sought. Section 24R therefore deals with the liability of the permit
holder after closure has been certified. It does not impose a perpetual obligation
to pump extraneous water, even beyond authorised closure of the mine. Seen in
this light, the ‘responsibility’ imposed by s 24R is confined to ‘liability’ and does
not impose an obligation to carry out an activity such as continued pumping of
extraneous water, after closure.

[46] In my view, it is unnecessary to decide the ambit of s 24R. It addresses a
post-closure situation and the financial provision provided in terms of s 24P of
NEMA. It accords with the so-called ‘polluter pays’ principle embodied in s
2(4)(p) of NEMA. On the facts of this case, the process of mine closure has not
yet been initiated. Until that occurs and the process of determining appropriate
conditions upon which the closure certificate may be issued, any consideration of
post-closure obligations would be premature, if not inappropriate.

[47] The incorporation of a reference to s 24R of NEMA in the order of the high
court was, in the circumstances, unwarranted. It follows that the order as framed
cannot be confirmed. However, for the reasons I have set out, the high court was
correct in its determination of the obligations of Ezulwini until a closure
certificate is issued. The appeal must, subject to the correction of the order of the
high court, therefore fail. There is no reason why costs should not follow the
event.

[48] In the result, the following order is made:
Paragraph 1 of the order of the high court is set aside and replaced with the
following:

‘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.’
Otherwise, the appeal is dismissed with costs, including the costs of two
counsel.

_______________________
G GOOSEN
ACTING JUDGE OF APPEAL

Appearances

For appellant:

C D A Loxton SC (with him P Lazarus SC)
Instructed by:

Warburton Attorneys, Johannesburg

Lovius Block, Bloemfontein

For second respondent:

J Rust SC (with her N Fourie)
Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein

For fifth and sixth respondents:
G L Grobler SC (with him J L
Gildenhuys SC)
Instructed by:

Werksmans Attorneys, Johannesburg

Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

30 May 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy and Others (Case no
289/2021) [2023] ZASCA 80 (30 May 2023)

The Supreme Court of Appeal (SCA) today dismissed an appeal against the judgment of the Gauteng
Division of the High Court, Johannesburg (Fabricius J)(the high court), which declared that a mine
operator is obliged to continue pumping and treating extraneous water from its underground mining
works until closure of the mine.
Ezulwini Mining Company (Pty) Ltd (Ezulwini) is the owner and operator of a deep level mine on the
Gauteng West Rand. Ezulwini acquired the mine in 2014. The mine, which is adjacent to and interlinked
with a mine owned by GFI Joint Venture (Pty) Ltd and operated by Goldfields Operations Limited
(together Goldfields), had been mined since the 1960’s. When Ezulwini acquired the mine, the pumping
of extraneous water from the underground works had already been undertaken for many years. Ezulwini
continued to pump water. In 2016 Ezulwini ceased its underground mining operations. It then applied
to the Department of Mineral Resources and Energy for authorisation to discontinue pumping. It also
applied to the Department of Water Affairs for an amendment of its water use licence.
Subsequently, and while the applications for authorisation were pending, Ezulwini brought an
application in the high court for a declaratory order that it was not obliged to continue its pumping
operations. The application was opposed by the Ministers of Mineral Resources and Energy;
Environment, Forestry and Fisheries; and Human Settlements, Water and Sanitation. It was also
opposed by Goldfields. Goldfields brought a counter-application seeking a declaration that Ezulwini was
obliged to continue pumping extraneous water until authorised by the issue of a closure certificate
The high court determined the matter on the basis of the counter-application brought by Goldfields. It
granted the declaration sought by Goldfields.  Ezulwini appealed to the SCA with leave of the high court.
Before the SCA, Ezulwini argued that its pumping of extraneous water was not an imposed obligation.
It pumped water to facilitate its underground mining operations. Since it had ceased those operations,
it was not obliged to continue pumping and could cease pumping without obtaining authorisation. . It
was common ground that the cessation of pumping would, over time, result in the underground mining
area being filled with groundwater. This would, in turn, result in the gradual rewatering of voids in the
dolomitic layers between the underground works and the surface.

The SCA undertook examined the legislative framework regulating the conduct of mining operations as
authorised in terms of the Mineral Petroleum and Resources Development Act (MPRDA) and the
National Environmental Management Act (NEMA). It held that all authorised and incidental operations
are subject to environmental management during the life cycle of a mining operation. Such operations
are subject to the regulated process of mine closure provided for in s 43 of the MPRDA and s 24N of
NEMA. The cessation of pumping underground water would necessarily impact the immediate physical
environment of the mine. The SCA held that such impact required assessment since it fell within the
scope of mine closure. The SCA found that s 43(1) of MPRDA and s 24N(7)(f) of NEMA obliged Ezulwini
to continue pumping extraneous groundwater until certified closure.
The high court had included a reference to s24R of NEMA in its order. That section primarily concerned
financial obligations which may extend beyond certified closure of a mine. The SCA held that the
imposition of consequential obligations under s24R of NEMA was a matter to be determined during the
mine closure process as provided by s43 of the MPRDA and s24N of NEMA. It was therefore necessary
to correct the high court order by deleting reference to s24R of NEMA. Save to this extent, the SCA
dismissed the appeal with costs.
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