Full Disclosure 2016

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

Nkomati Anthracite (Pty) Ltd (Nkomati) featured in the 2013-2014 National Environmental Compliance and Enforcement Report for its receipt of the highest ever criminal fine in South Africa for a pollution and waste case.¹ In The State v. Nkomati Anthracite (Pty) Ltd, a plea and sentence agreement was entered into in terms of which Nkomati pleaded guilty to eight counts of contravening water and environmental laws. Nkomati was sentenced to a fine of one million Rand suspended for a period of 5 years. Nkomati was also ordered to pay four million to the Environmental Management Inspectorate of the DEA. The facts of the case are described in the NECER as follows:

During October 2010 certain unlawful activities taking place by Nkomati Anthracite in Mpumalanga came to the attention of the Mpumalanga Department of Economic Development and Environment and Tourism (“the provincial department”). The provincial department issued Nkomati Anthracite with a notice of its intention to issue a compliance notice in respect of the unlawful commencement of a listed activity without authorisation.

Shortly thereafter, the Department of Water Affairs (“DWA”) become aware of these unlawful activities. DWA issued Nkomati Anthracite with a notice of intention to issue a directive and thereafter with a directive in respect of diverting the flow of water in a watercourse, disposing of waste in a manner which may detrimentally impact on a water resource, altering the characteristics of a watercourse and by storing water. The DWA proceeded to open a criminal case against Nkomati Anthracite which was handed over to the South African Police Service.

Having received the docket from DWA, the North Gauteng offices of the director of public prosecutions requested the DEA to further investigate the criminal matter insofar as contraventions of section 24F of NEMA were concerned (i.e. undertaking activities listed or specified in terms of section 24 of NEMA without the necessary environmental authorisation).

DEA conducted the necessary investigations. During August 2013 Nkomati Anthracite was charged with eight counts. Nkomati Anthracite pleaded guilty to all eight charges. Five in respect of contraventions of section 24F(1)(a) of NEMA (conducting EIA listed activities without the requisite environmental authorisation) and three in respect of section 151(1)(a) of the NWA (diverting the flow of water in a watercourse, disposing of waste in a manner which may detrimentally impact on a water resource, altering the characteristics of a watercourse and by storing water).²

Sentula has not otherwise featured in the ‘Industrial Compliance and Enforcement’ sections of the National Environmental Compliance and Enforcement Reports. However, as the Department of Environmental Affairs’ Environmental Management Inspectors do not have jurisdiction over the environmental or water impacts of mining, this does not mean that the company has not been subject to compliance monitoring and/or enforcement action. The Department of Mineral Resources and the Department of Water and Sanitation are responsible for compliance monitoring and enforcement of environmental and water laws by mining companies. Unlike the Department of Environmental Affairs, thus far neither department has published any information on the findings of their inspections or on the enforcement action taken by their departments.

While the DWS has, for the first time in 2016, collaborated with the DEA by providing some key statistics about its compliance monitoring and enforcement activities for inclusion in the 2015/2016 NECER, these statistics are high-level, overall statistics. The DWS has not given any details of facilities inspected or of inspection findings.

Most of the mining companies assessed in Full Disclosure do not refer to compliance monitoring inspections by the Department of Mineral Resources or Department of Water and Sanitation in their shareholder reporting.

The fact that the Departments charged with regulating the sector do not publicise non-compliance findings or enforcement action means that it is impossible to know whether or not the level of disclosure on environmental and water non-compliances by mining companies in their annual reports is accurate.