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Harmony Gold Mining Company Limited's disclosure of environmental non-compliances in annual reports

Some environmental non-compliances are reported in the company’s own reports.

2009 company reports

In 2009 it was stated that compliance audits had been undertaken that year, including by the Department of Mineral Resources, and that “areas of non-compliance identified by the audits have been and are being addressed”.1 No further information is provided as to the nature of these non-compliances.

There were also four “significant environmental incidents”. The company defines such incidents as those which have an impact outside the company’s boundaries, which may cause irreparable harm or require significant expenditure to remedy. The significant incidents in 2009 were the following: one incident of seepage from slimes dams, two incidents of unexpected water discharge, and one incident of flooding of an agricultural area.2

2010 company reports

The 2010 Sustainable Development Report reported that there had been five significant environmental incidents. These incidents were the following:

  • spillage of 30m³ of gold-bearing slime into the Winkelhaak Spruit (Mpumalanga);
  • an overflow of seepage into the Loopspruit tributary (Randfontein);
  • floods in catchment areas of the Winkelhaak Spruit and Grootspruit streams (Mpumalanga);
  • overflow of surface water holding tanks resulting in the spillage of process water into a storm water trench; and
  • the spillage of raw sewage onto neighbouring land.3

The Sustainable Development Report states that no environmental fines or sanctions were received in the 2010 financial year.4

2011 company reports

In the 2011 financial year, Harmony Gold stated that it received no environmental fines or sanctions in South Africa.5 However, four directives were issued.

Firstly, a condition accompanying an Environmental Management Programme approval stipulated a requirement to “backfill a D-zone pit”. The company stated that scientific studies have shown that backfilling the pit would have a negative impact on the environment and therefore the company was working to seek revocation of the approval.

Secondly, there was a directive received from the Department of Mineral Resources relating to airborne dust.

Thirdly, there was a directive from the Department of Water Affairs relating to the release of underground water. The company stated that the mine had proved that discharge does not impact on river water quality.

Finally, the Department of Mineral Resources requested Kusasalethu (on the border of Gauteng and the North West province) to improve access control of communities to the return water dam for safety reasons.6

There were also a number of significant environmental incidents reported by the company during the 2011 reporting period which included:

  • underground water discharge at Doornkop;
  • non-compliance with water licence discharge conditions at Pres Steyn;
  • water discharge from Nyala wash bay to the environment;
  • overflow of return water dams at Doornkop, Kusasalethu and Evander;
  • overflow of Nyala shaft water discharge into receiving environment;
  • Steyn 9 discharge overflow into receiving environment;
  • treated sewage water discharge at Kusasalethu; and
  • dust pollution from Steyn 9 slimes dam (for which a directive was received from the Department of Mineral Resources).7
2012 company reports

Harmony Gold states that no environmental fines or sanctions were received in during the 2012 reporting period.8 However, it was reported that the Department of Mineral Resources in the Free State region had received a community request to reduce dust exposure (although it was also stated that monitoring results had been within compliance limits) and an issue being addressed was said to be the unlicensed storage of low-grade ore at Kalgold (located close to Mafikeng in the North West province).9

The following significant environmental incidents were reported by the company in the 2012 reporting year:

  • return water dam overflow at Kusasalethu;
  • shaft sewage overflow at Doornkop;
  • failure of drain at Kalgold;
  • unauthorised stockpile of low-grade ore at Kalgold;
  • return water dam overflow into Grootspruit at Evander;
  • municipal sewage discharge into dam resulting in overflow into receiving environment at Steyn 9;
  • slimes delivery pipeline burst at Saaiplaas; and
  • a ‘Section 55’ issued by the Department of Mineral Resources for dust pollution.10

The 2012 report also contains information about litigation brought by Harmony Gold in relation to its obligation to deal with acid mine drainage. In 2005, the Department of Water Affairs issued a series of directives to Harmony Gold and three other gold mining companies operating in the Klerksdorp, Orkney, Stilfontein and Hartbeesfontein (KOSH) Basin. The directive ordered the companies to take measures to prevent pollution of underground and surface water resources in the vicinity of their mining operations.11

Harmony Gold sold its mines operating in the KOSH Basin to Pamodzi Gold Orkney (Pty) Ltd in 2008. Not long after acquiring the mines, Pamodzi ran into financial difficulties and went into provisional liquidation in 2009, rendering it unable to comply with the directive.

Harmony Gold contended that the directive issued by the Department of Water Affairs no longer applied to it since it had sold the mines to Pamodzi and was no longer the owner. Harmony Gold asked the Minister of Water Affairs to withdraw the directive. The Minister refused, and Harmony Gold made application to the North Gauteng High Court to review the decision and withdraw the directive. The North Gauteng High Court dismissed the company’s application, and Harmony Gold then appealed the judgment.

Harmony Gold’s appeal was unsuccessful.12 The Supreme Court of Appeal assessed section 19 of the National Water Act, which deals with the prevention and remediation of pollution. The Supreme Court of Appeal held that section 19 of the National Water Act provides no limitation that a directive may only bind the owner, occupier or user of the affected land to take remedial measures. The Supreme Court of Appeal concluded that the directive remains in force until Harmony Gold fully complies with it, the rationale behind the provision in the National Water Act being “to direct the landholder to address the pollution or risk of pollution however long it may take to do so” and that “the rationale does not fall away when the landholder ceases to own, control, occupy or use the land”.13 In February 2014, the Constitutional Court dismissed Harmony Gold’s application for leave to appeal. The Supreme Court of Appeal’s judgment is an important endorsement of the principle that the polluter must pay the costs associated with preventing, minimising and remedying the pollution which it has caused. This judgment means that companies can no longer avoid environmental obligations by selling their assets to a third party.

Despite the very clear terms of the Supreme Court of Appeal’s judgment, Harmony Gold still denies that it is responsible for the pollution prevention measures required by the directive (see update under “2014 company reports” below).

2013 company reports

In 2013 Harmony Gold reported that no environmental sanctions or fines had been received during the year.14 Significant environmental incidents in South Africa included the following:

  • residue spillage from plant at Saaiplaas;
  • two return water dam overflows at Kusasalethu; and
  • spillage after slimes delivery pipeline burst at Harmony Gold plant 1.15
2014 company reports

The 2014 Annual Report recorded three Level 3 incidents in South Africa:16

  • overflow of the return water dam resulting in breach of permit conditions;
  • a third party company operating a waste water treatment works adjacent to Harmony Gold’s pollution control dam discharged raw sewage into the dam resulting in the death of fish and Harmony Gold received a section 55 instruction from the Department of Water Affairs directing improvement of access control measures; and
  • a pump motor failed resulting in water overflowing into the storm water stream for 72 hours.17

The company states that no fines or sanctions were received during the reporting year for non-compliance with environmental laws and regulations at any of its operations.18

It was reported by the Minister of Water Affairs that as of 25 July 2014 a Harmony Gold mine was operating without a water use licence, as the authorisation was still in process.19

Despite the findings of the Supreme Court of Appeal and the Constitutional Court in the case of Harmony Gold Mining Company Limited v Regional Director: Free State Department of Water Affairs, discussed under “2012 company reports” above, the following denial of responsibility for addressing water pollution in the KOSH basin appears in Harmony Gold’s 2014 Annual Report:

NOTEWORTHY ACTION KLERKSDORP, ORKNEY, STILFONTEIN AND HARTBEESFONTEIN (KOSH) BASIN AND ACID MINE DRAINAGE

Though we [sic], AngloGold Ashanti and Simmer & Jack (Simmers) are continuing with efforts to find a mutually agreeable outcome to the KOSH pumping issue. On 13 February 2014, Harmony received an unfavourable ruling from the Constitutional Court on our 15 January 2014 appeal on the constitutionality of an earlier ruling by the Supreme Court of Appeal that the company was obliged to participate in the KOSH pumping in accordance with the directive issued in terms of the Act. We argue that in terms of the National Water Act 36 of 1998, responsibility for addressing pollution lies with the owner, occupier, controller or user of the land on which the pollution takes place. Harmony is none of these things and we therefore contend that we are not liable for the cost of pumping.20

  1. Harmony Gold Sustainable Development Report 2009 at p72, available at https://www.harmony.co.za/assets/investors/reporting/annual-reports/2009/files/Harmony_SD09.pdf
  2. Harmony Gold Sustainable Development Report 2009 at p72, available at https://www.harmony.co.za/assets/investors/reporting/annual-reports/2009/files/Harmony_SD09.pdf
  3. Harmony Gold Sustainable Development Report 2010 available at http://www.harmony.co.za/assets/sd/reports/2010/environment.htm
  4. Harmony Gold Sustainable Development Report 2010 available at http://www.harmony.co.za/assets/sd/reports/2010/environment.htm
  5. Harmony Gold Annual Report 2011 at p14, available at http://www.financialresults.co.za/2011/harmony_ar2011/downloads/harmony_integrated_ar2011.pdf
  6. Harmony Gold Sustainable Development Report 2011 at p72, available at http://www.financialresults.co.za/2011/harmony_ar2011/downloads/harmony%20AR%20SD%20Low%20res.pdf
  7. Harmony Gold Sustainable Development Report 2011 at p78, available at http://www.financialresults.co.za/2011/harmony_ar2011/downloads/harmony%20AR%20SD%20Low%20res.pdf
  8. Harmony Gold Sustainable Development Report 2012 at p107, available at https://www.harmony.co.za/assets/investors/reporting/annual-reports/2012/harmony_sd2012.pdf
  9. Harmony Gold Sustainable Development Report 2012 at p107, available at https://www.harmony.co.za/assets/investors/reporting/annual-reports/2012/harmony_sd2012.pdf
  10. Harmony Gold Sustainable Development Report 2012 at p124, available at https://www.harmony.co.za/assets/investors/reporting/annual-reports/2012/harmony_sd2012.pdf
  11. http://www.digbywells.com/en/wp-content/themes/ColdStone/PDF-Downloads/Harmony%20Gold%20Mining%20Company%20Limited.pdf (last accessed on 7 August 2015).
  12. http://cer.org.za/virtual-library/harmony-gold-mining-company-ltd-v-regional-director-free-state-department-water-affairs-others (last accessed on 7 August 2015).
  13. http://cer.org.za/wp-content/uploads/2013/12/Harmony-Gold-Mining-Company-v-Free-State-Regional-Department-of-Water-Affairs-and-others.pdf at para24
  14. Harmony Gold Environmental Performance 2013 at p4, available at http://www.financialresults.co.za/2013/harmony_ir2013/harmony_ep2013/index.php
  15. Harmony Gold Environmental Performance 2013 at p16, available at http://www.financialresults.co.za/2013/harmony_ir2013/harmony_ep2013/index.php
  16. Harmony Integrated Annual Report 2014 at p80, available at http://www.harmony.co.za/frames/notice-ir14.html
  17. Harmony Integrated Annual Report 2014 at p82, available at http://www.harmony.co.za/frames/notice-ir14.html
  18. Harmony Integrated Annual Report 2014 at p82, available at http://www.harmony.co.za/frames/notice-ir14.html
  19. Question No. 1716, Date of publication in internal question paper: 19 September 2014, available at https://www.dwa.gov.za/communications/Q&A/2014/NA%201716.pdf
  20. Harmony Integrated Annual Report 2014 at p 94, available at http://www.harmony.co.za/frames/notice-ir14.html