Judge Tati Makgoka dismissed an application by the Harmony Gold Mining Company for the court to set aside a November 2005 directive by the department of water affairs under the National Water Act’s anti-pollution section.
Harmony Gold contended the directive no longer applied to it since they sold the mine to Pamodzi Gold Orkney in 2007 and was no longer the owner.
Pamodzi went into provisional liquidation in 2009.
The departmental directive forced Harmony and other companies mining in the Klerksdorp, Orkney, Stilfontein and Hartebeesfontein (Kosh) area of the North West province to share the costs of pumping and treating acid mine water.
The directive was to remain in effect until the mining houses had reached an agreement on the long term management of mine water in the area – an agreement that was never concluded.
Harmony approached the court for relief when the department refused to withdraw the directive.
The company maintained the directive was unreasonable and constitutionally impermissible as there was no longer any link between them and the land or the pollution.
Judge Makgoka said the directive was issued when Harmony owned the land.
“The applicant’s mining activities polluted and contributed to the pollution of the underground water in the Kosh area,” he said.
“The applicant derived financial benefit from its pollution activities. Without fully complying with the directive, and while the obligations in terms of the directive remained unfulfilled, the applicant disposes of its entire issued share capital to Pamodzi in August 2007.
“It is therefore not correct that the applicant is obliged to take responsibility for others’ contribution to the pollution.”
He said the directive required of Harmony to take measures, among others, for pollution which occurred while it owned the land.
“…There is therefore a clear causal and moral link between the directive and the applicant’s pollution activities.”
Makgoka said Harmony’s interpretation of the act would lead to a glaring absurdity in that a landholder who caused pollution through his activities could escape his obligations by simply disposing of the land.
Such an interpretation would defeat the purpose and principles of the National Environmental Management Act, the Water Act and Constitution, he said.
“Until the applicant fully complies with the directive, the directive remains valid,” Makgoka concluded.