Pretoria - Harmony Gold Mining Company [JSE:HAR] must continue paying for pumping and
treating acid mine water in and around the Orkney gold mine, the North Gauteng High
Court in Pretoria ruled on Monday.
Judge Tati Makgoka 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.
Harmony Gold contended the directive no longer applied
to it since it sold the mine to Pamodzi Gold Orkney in 2007 and is 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 - 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 it 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,"
"The applicant derived financial benefit from its
"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
"It is therefore not correct that the applicant is obliged to take responsibility for others' contribution to the pollution."
He said the directive required of Harmony to take measures, among others, for pollution which occurred while it owned the land.
"There is therefore a clear causal and moral link between the directive and the applicant's pollution activities."
Makgoka 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.
Such an interpretation would defeat the purpose and
principles of the National Environmental Management Act, the Water Act
and Constitution, he said.
"Until the applicant fully complies with the directive, the directive remains valid," Makgoka concluded.