Full Disclosure 2016

Environmental non-compliances reported by affected communities, the media, & NGOs

In the CER’s 2016 report, Zero Hour: Poor governance of mining and the violation of environmental rights in Mpumalanga, the CER set out the details of an access to information request which it made in terms of PAIA to the DWS in 2015.¹ The CER’s PAIA request was for:

A list of (or records indicating) the mines, industrial facilities and water services authorities in respect of which criminal dockets have been opened with the South African Police Services (SAPS) by the Department of Water & Sanitation for failure to comply with the National Water Act, 1998, during the period 2010 to 2015, including:

1. the names of the mines, industrial facilities and water services authorities;
2. the regions in which the mines, industrial facilities and water services authorities are located;
3. the branches or community service centres of the SAPS at which the dockets were opened; and
4. the CAS number for each docket.

The DWS responded to the CER’s PAIA request on 18 August 2015. Annexure A of the DWS’ response contained reference to a docket that was opened in relation to “Wescoal Mine” at Witbank Police Station under case number 408/07/2011 for the section 151(1) offence of “a) the use of water otherwise than as permitted under this Act; d) fail to comply with a directive issued under section 19,20,53 or 118”. This criminal charge laid against “Wescoal Mine” is also referenced in a briefing by the South African Police Service to the Portfolio Committee on Water and Sanitation on 2 September 2015.²

The CER noted, in its letter to Wescoal requesting comment on Full Disclosure, that Wescoal had failed to disclose in its company reports that the DWS had laid criminal charges against the company for failure to comply with the National Water Act. In response, Wescoal’s CEO, Mr Waheed Sulaiman, stated that:

With regard to your report on a criminal charge being laid against the Company for a contravention of the National Water Act in March 2013, we cannot establish the legitimacy of such a charge nor find any confirmation within the Company of such charge being laid against the Company. We request that you verify and obtain confirmation thereof, and provide us with such confirmation prior to publishing such a statement. However, we assure you that Wescoal is committed to operating responsibly.

Accordingly, the CER wrote to the Acting Head of Compliance Monitoring at the DWS on 17 October 2016 requesting confirmation of the criminal charge. The DWS responded to our letter on 1 November 2016, confirming that:

A case docket against Wescoal Mine was registered at Witbank Police Station by ME AR Nollan on the 14/07/2011 around 13:27. On the 07/06/2010 one Mr Oupa Mahosi from DWS Mpumalanga Region (CME) conducted an investigation together with Mr Jacques Derrickson from Wescoal mine. And there was also a joint inspection with DMR, DWS, DEDET, Emalahleni Local Municipality and Wescoal mine which was represented by their Safety officer Mr Jacko Burger.

This information was sent to Wescoal on 2 November 2016. On 9 November 2016, Mr Sulaiman responded again, stating that:

Please be advised that the content of paragraph 5 of your letter [the DWS’s response set out above] is too vague for us to provide a meaningful response, we accordingly have no comment thereto.

While the DWS’ 1 November 2016 response is arguably incomplete as it does not contain full details of the charge which was laid, it is clear that Wescoal could have engaged more on this issue, particularly given that the DWS supplied names of Wescoal employees consulted during the investigation.