Full Disclosure 2016

Non-compliance with environmental laws as reported in the National Environmental Compliance and Enforcement Reports

The 2010/2011 NECER reports on compliance monitoring and enforcement at CoAL’s Vele Colliery as follows:

This matter related to mining operations which commenced in close proximity to a declared World Heritage Site – the Mapungubwe Cultural Landscape Area, which encompasses the Mapungubwe National Park. Although the company was in possession of a new order mining right issued by the Department of Mineral Resources, it failed to obtain environmental authorisation for the associated activities which are listed and require authorization in terms of the National Environmental Management Act (NEMA).

The administrative enforcement processes related to this matter were addressed in three separate notices of intention to issue compliance notices, with a consolidated final notice of intent being issued on 18 June 2010 and a final Compliance Notice issued to Coal of Africa Ltd (“CoAL”) and Limpopo Coal Company (Pty) Ltd (“LCC”) on 5 of August 2010 after the Department had extensively engaged with CoAL and LCC as required by administrative justice.

Despite the arguments put forward that the issuing of the mining right effectively means that no other authorizations are required within the mining right area, the Department remained of the view that an authorisation issued in terms of the Mineral and Petroleum Resources Development Act does not equate to an authorisation in terms of the NEMA. This legal point of view was confirmed in the recent High Court judgment in the Western Cape in the matter between the City of Cape Town and Maccsand (Pty) Ltd and others.

CoAL complied with the compliance notice and ceased with all relevant activities. An objection against the notice was submitted to the Minister together with a request to suspend the operation of the compliance notice pending a decision in relation to the objection. The Minister allowed the use of certain infrastructure (specifically roads) for environmental monitoring purposes; however, she dismissed the objection.

CoAL applied in terms of section 24G NEMA for rectification in respect of all the activities that commenced illegally and which were captured in the compliance notice. As of March 2011, these applications are being processed.

The criminal investigation is almost complete. The companies have allegedly committed 32 offences set out in the NEMA, NEMWA and the National Water Act. The criminal docket is currently with the Director of Public Prosecutions (DPP), Northern Gauteng Office, for review (Ref: 9/2/15/4-9/2011) and the Department is awaiting further instructions in order to finalise the docket prior to issuing summons.¹

The section 24G administrative fine paid by CoAL in relation to unlawful commencement of listed activities at the Vele Colliery is referenced in the 2011/2012 NECER under “overall national statistics”:

There has been a dramatic increase in the total value of section 24G administrative fines paid from R 8,364,870.00 in 2010/11 to R 17,627,233 with Vele Colliery contributing more than half of the amount (R 9,250,000).²