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

The High Court 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 and thusHarmony Gold must continue paying for pumping and treating acid mine water in and around the Orkney gold mine. 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, but 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.” The Judge 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.