ROAD PAVEMENTS FORUM
Legal implications when using borrow
pits and mobile crushers for the
production of road material.
22 November 2005
Alan Cluett
Environmental Consultant
Holcim
Content
 Some quarrying statistics
 Some Definitions
 Legal trends in South Africa
 Extracts from South African Law
 Other aspects

Quality, Environmental Programmes, CSR
 Contractor responsibility
 Authority Responsibility
 Conclusions
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ASPASA
Road Pavement Forum 2005
09.04.2020
Some quarrying statistics
Period 2004
 DME aggregate volumes @ 44.8 million tons;
(“declared volumes”)
 DME estimate this reflects 75% of total volume;
(~ 60 million for total market)
 DME place industry employment at 4125;
 ASPASA estimates aggregate volumes at ~ 90mio tons;
(based on cement sales)
 Limestone Aggregate Sector (LAS) ~R6 billion;
(5th behind Gold, Platinum, Diamonds and Coal)
 Some 4000 derelict and ownerless mines in SA.
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Some Definitions
Aggregate - different sized stone used in the building, construction and road-making
industries.
Sand - finer aggregate components, usually < 6mm . Sand is further classified into –
Natural Sands derived from, for example, rivers or decomposed rock deposits
e.g. granite; and,
 Crusher sands derived from the aggregate crushing process .
Crushing plant - the production facility associated with the quarry, comprising various
crushing units linked via conveyors and screens. The crushing plant is the on-site
beneficiation unit producing aggregate.

Quarry - A surface mine from which rock is mined and processed into aggregate.
Sustainable Development - The most common definition is that of the 1990 Bruntland
Report - “Our Common Future”, i.e.
“Sustainable Development is development that meets the needs
of the present without compromising the
future generations to meet their own needs”
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09.04.2020
Legal Trends in South Africa
Prior to 1994
“Old order” legislation formed and implemented in the era
of economic sanctions (political) 




Advertising on Road and Ribbon Development Act (1940);
Water Act (1957);
Explosives Act (1965);
Atmospheric Pollution Prevention Act (1965);
National Road Act (1971);
 Conservation of Agricultural Resources Act (1983);
 Environment Conservation Act (1989);
  Minerals Act (1991);…..
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Legal Trends in South Africa
Post 1994
“New order” legislation formed and implemented to work
in the post sanctions era of environmental sanction













The Constitution of the Republic of South Africa (1996);
Mine Health and Safety Act (1996);
National Water Act (1998);
National Environmental Management Act (1998);
National Forest Act (1998);
National Heritage Resources Act (1998);
National Veld and Forest Fire Act (1998);
Mineral and Petroleum Resources Development Act (2002);
Air Quality Act (2004).
In total there are more than 27 Acts of Parliament, numerous Provincial Ordinances
and a number of Local government and By-laws with environmental requirement.
Section 35 Criminal Procedure Act, 1977
ASPASA
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09.04.2020
Extracts from South African Legislation
Constitution of the Republic of South Africa.(1996).
24. Environment
Everyone has the right 

(a) to an environment that is not harmful to their health or wellbeing; and
(b) to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and other
measures that (i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and
use of natural resources while promoting justifiable
economic and social development.
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Extracts - Environment Conservation Act (1989)
R.1182 - 5 September 1997
21. Identification of activities which will probably have detrimental
effect on environment including
(a) Land use and transformation;
(c) resource removal, including natural living resources;
22. Prohibition on undertaking of identified activities
 (1) No person shall undertake an activity identified in terms of
section 21 (1) or cause such an activity to be undertaken except by
virtue of a written authorisation ….
26. Regulations regarding environmental impact reports….
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Extracts - Environment Conservation Act (1989)
Part VII - Offences, Penalties and Forfeiture
29. Offences and penalties
(4) Any person who contravenes a provision of section … 22(1) … or
fails to comply ….shall be guilty of an offence and liable on
conviction to a fine not exceeding R100 000 or to imprisonment for
a period not exceeding 10 years …..
(7) In the event of a conviction…. the court may order that any
damage to the environment resulting from the offence be repaired
by the person so convicted, to the satisfaction of the Minister
(8) If within a period of 30 days….(the “authority”) may itself take the
necessary steps to repair the damage and recover the cost thereof
from the person so convicted.
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Extracts - National Environmental Management Act (107/1998)
24. Environmental authorisations
24E. Minimum conditions attached to environmental
authorisations
24F. Offences relating to commencement or continuation of listed
activity
 (1) Notwithstanding the provisions of any other Act, no person may
commence an activity listed in terms of section 24(2)(a) or (b)
unless the competent authority has granted an environmental
authorisation ….
 24G. Rectification of unlawful commencement or continuation
of listed activity
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Extracts - National Environmental Management Act (1998)
28. Duty of care and remediation of environmental damage
(1) Every person who causes, has caused or may cause significant
pollution or degradation of the environment must take reasonable
measures to prevent such pollution or degradation from occurring,
continuing or recurring, …
(7) Should a person fail to comply, or inadequately comply, with a
directive …., the Director-General or provincial head of department
may take reasonable measures to remedy the situation.
(8) …. may recover all costs incurred … from any or all of the following
persons (a) any person who is or was responsible for, or who directly or
indirectly contributed to, the pollution or degradation or the potential
pollution or degradation;
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Extracts - National Environmental Management Act (1998)
(9) The (Authority) may, claim proportionally from any other person
who benefited ….; and , (11) If more than one person is liable, the
liability must be apportioned among the persons concerned
according to the degree to which each was responsible…
29. Protection of workers refusing to do environmentally hazardous
work
(1) Notwithstanding the provisions of any other law, no person is civilly
or criminally liable or may be dismissed, disciplined, prejudiced or
harassed on account of having refused to perform any work if the
person in good faith and reasonably believed at the time of the refusal
that the performance of the work would result in an imminent and
serious threat to the environment.
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Extracts - National Environmental Management Act (1998)
34D. Forfeiture of items
(1) The court convicting a person of an offence in terms of this Act
may declare any item, including but not limited to any specimen,
container, vehicle, vessel, aircraft or document that was used for
the purpose of, or in connection with the commission of the offence
and was seized under the provisions of this Part, to be forfeited to
the State.
(2) The provisions of section 35 of the Criminal Procedure Act, 1977
(Act No. 51 of 1977), apply to the forfeiture of any item in terms of
subsection (1), subject to such modifications as the context may
require
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Extracts - National Environmental Management Act (1998)
R.765 - 25 June 2004
…..Activities that may not commence without Environmental
Authorisation from the competent authority
Schedules
Definitions
The following definitions apply to these schedules  "industrial mineral" means aggregate,……, manufactured sand from
hardrock, manufactured sand from waste dump, stone aggregate
from waste dump, gravel stone aggregate,…..
 "silica" means building sand, concrete sand, crusher sand, filling
sand, ..., silcrete or silica sand;
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Extracts - National Environmental Management Act (1998)
Schedule 3: Activities that require Initial Assessment
The activities listed in this schedule may not be undertaken prior to
the issuing of an environmental authorisation by the competent
authority. …
4.The mining, quarrying, prospecting, extraction or production,
including associated structures and the extension of existing
operations, of  (a) industrial minerals;...
 (d) silica;...
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Extracts - National Water Act (1998)
19 Prevention and remedying effects of pollution
(1) An owner of land, a person in control of land or a person who
occupies or uses the land on which (a) any activity or process is or was performed or undertaken; or
(b) any other situation exists, which causes, has caused or is likely to
cause pollution of a water resource, must take all reasonable
measures to prevent any such pollution from occurring, continuing
or recurring.
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Extracts - National Water Act (1998)
(5) Subject to subsection (6), a catchment management agency may
recover all costs incurred as a result of it acting…. jointly and
severally from the following persons:
(a) any person who is or was responsible for, or who directly or
indirectly contributed to, the pollution or the potential pollution;
(d) any person who negligently failed to prevent -
(i) the activity or the process being performed or undertaken; or
(ii) the situation from coming about.
(6) The catchment management agency may ... recovery costs ... from
any other person who, in the opinion of the catchment management
agency, benefited from the measures undertaken under subsection
(4), to the extent of such benefit.
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Extracts - Mineral & Petroleum Development Act (2002)
1. Definitions
In this Act, unless the context indicates otherwise -
"mine", when used as a verb, means any operation or activity for the
purposes of winning any mineral on, in or under the earth, water or
any residue deposit, whether by underground or open working or
otherwise and includes any operation or activity incidental thereto;
"mineral" …. includes sand, stone, rock, gravel, clay, soil and any
mineral occurring in residue stockpiles or in residue deposits,…
"processing", in relation to any mineral, means the winning, extracting,
…., crushing, screening, washing, reduction;…
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Extracts - Mineral & Petroleum Development Act (2002)
4. Interpretation of Act
(4) No person may prospect for or remove, mine, conduct technical
co-operation operations, reconnaissance operations, explore for
and produce any mineral ... or commence with any work incidental
thereto on any area without (a) an approved environmental management programme or approved
environmental management plan, as the case may be;
(b) a reconnaissance permission, prospecting right, permission to
remove, mining right, mining permit, retention permit, technical cooperation permit, reconnaissance permit, exploration right or
production right, as the case may be; ...
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Extracts - Mineral & Petroleum Development Act (2002)
22. Application for mining right
(1) Any person who wishes to apply to the Minister for a mining right
must lodge the application -…….
39. Environmental management programme and environmental
management plan
(1) Every person who has applied for a mining right in terms of section
22 must conduct an environmental impact assessment and submit
an environmental management programme within 180 days of the
date on which he or she is notified by the Regional Manager to do
so.
40. Consultation with State departments
41. Financial provision for remediation of environmental damage
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Extracts - Mineral & Petroleum Development Act (2002)
43. Issuing of a closure certificate
44. Removal of buildings, structures and other objects
45. Minister's power to recover costs in event of urgent remedial
measures
(1) If any prospecting mining reconnaissance or production operations
cause or results in ecological degradation, pollution or
environmental damage which may be harmful to the health or well
being of anyone and requires urgent remedial measures the….
46. Minister's power to remedy environmental damage in certain
instances
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Extracts - Mineral & Petroleum Development Act (2002)
98. Offences
Any person is guilty of an offence if he or she - (a) contravenes or fails
to comply with (vi) any directive, notice, suspension, order, instruction or condition
issued, given or determined in terms of this Act;
(viii) any other provision of this Act;
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Extracts - Mineral & Petroleum Development Act (2002)
99. Penalties
Fines range from R10 000 to R500 000 and imprisonment for various
contravention's, with (g) in the case of any conviction of an offence in terms of this Act for
which no penalty is expressly determined, to a fine or to
imprisonment for a period not exceeding six months or to both a
fine and such imprisonment; and
101. Appointment of contractor
If the holder of a right or permission appoints any person or employs a
contractor to perform any work within the boundaries of the
reconnaissance, mining, prospecting, exploration, production or
retention area, as the case may be, such holder remains
responsible for compliance with this Act.
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Summary of legal requirement
Constitution of the Republic of South Africa
Supreme legislation, S24 - the right to a “clean & healthy environment
Environment Conservation Act
Identified Activities - Mining, Authorisations, EIA or Initial Assessments
National Environmental Management Act
S28 - “Duty of Care”, Responsibility & cost recovery
National Water Act
S19 - Prevention of Pollution of water resource
Mineral & Petroleum Resources Development Act
S4 No prospecting an approved EMP, S22 - Apply for mining “permission”,
S39 - Must have approved EMP for mining, S41 - Financial Provisions, S45
& S46 Damage and recovery of costs!
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Other Considerations
Quality - Fresh vs. weathered, ACV, 10% Fact, PV…
Product range - Limited product range
Capacity - Plant production rates, Delivery
Full community cost - Not leaving a liability for the community
Environmental protection - EMP’s, Rehabilitation funds, Closure
plans
Contribution to community - Community development and Social
responsibility
Stable workforce - Long term employment, Pensions, Medical Aid,
training
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Weathered Dolerite
Fresh Dolerite
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Other Considerations
ASPASA About Face Environmental Programme
Operation
Coedmore
Eikenhof
Ferro
Jukskei
Ladysmith
Blocked
Newcastle
for the
Olifantsfontein
sake of
Peninsula
Pietermaritzburg
sensitive
Rheebok
viewers
Roodekraans
Rooikraal
Umlaas Road
Verulam
Vogels
Zeekoewater
1998
5 Fish Eagles
4 Fish Eagles
4 Fish Eagles
3 Fish Eagles
2 Fish Eagles
5 Fish Eagles
2 Fish Eagles
5 Fish Eagles
4 Fish Eagles
2 Fish Eagles
2 Fish Eagles
3 Fish Eagles
4 Fish Eagles
1999
5 Fish Eagles
5 Fish Eagles
5 Fish Eagles
4 Fish Eagles
3 Fish Eagles
5 Fish Eagles
3 Fish Eagles
5 Fish Eagles
4 Fish Eagles
4 Fish Eagles
4 Fish Eagles
2000
Showplace
4 Fish Eagles
Showplace
3 Fish Eagles
4 Fish Eagles
Showplace
4 Fish Eagles
Showplace
5 Fish Eagles
4 Fish Eagles
4 Fish Eagles
2002
Showplace
4 Fish Eagles
Showplace
5 Fish Eagles
4 Fish Eagles
Showplace
4 Fish Eagles
5 Fish Eagles
5 Fish Eagles
4 Fish Eagles
4 Fish Eagles
3 Fish Eagles
2 Fish Eagles 2 Fish Eagles 5 Fish Eagles
4 Fish Eagles Showplace
Showplace
2 Fish Eagles
4 Fish Eagles 3 Fish Eagles 5 Fish Eagles
Continuous Environmental Performance
ASPASA
Road Pavement Forum 2005
2004
Showplace
5 Fish Eagles
Showplace
5 Fish Eagles
Showplace
Showplace
5 Fish Eagles
Showplace
5 Fish Eagles
5 Fish Eagles
5 Fish Eagles
4 Fish Eagles
5 Fish Eagles
Showplace
4 Fish Eagles
5 Fish Eagles
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External multi-disciplinary audit
DME EMEM Awards 2002
Operation
Blocked
for the
Ferro
sakeJukskei
of sensitive
viewers
Ngagane
Position in
South Africa
First Place
First Place
First Place
Category
Medium Sized Quarry
Large Sized Quarry
Small Sized Quarry
All ASPASA 2004 Showplace
Quarries are automatically
entered into the DME EMEM
Award programme.
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Contractor Quarry
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Contractor Quarry
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Top Commercial Quarry
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Employee Training
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Community investment
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Mine Rehabilitation
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Rehabilitation in progress
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Rehabilitation in progress
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Contractor Responsibility
Responsibility towards stakeholders - Shareholders,
Communities, Suppliers and Authorities.
Legal Compliance - Environmental and Health, Safety and Labour.
Socio-economic obligations - Community investment not “whipin, whip-out, mine it and vie!”
Environmental responsibility - not detrimental to human health
and wellbeing
Environmental ethic - ensure supplier of aggregate has necessary
permits and licenses e.g.mining, water etc.
Economics - durable, quality road and product at economic cost
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Authority Responsibility
Ensure protection of Constitutional Right (S24)
Ensure level playing field;
Enforce legal requirement;
Ensure optimal resource utilisation;
Ensure environmental compliance;
Prosecute illegal operators and ensure full remediation of
disturbed areas.
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Conclusions
 Contractors have a legal and moral responsibility to
uphold the law of the country;
 Failure to check the ‘credentials’ of the supplier could
result in a claim against the contractors company in
terms of NEMA, the NWA and MPRDA;
 Claims can be substantial and could account for all the
profit made on the venture;
 In interests of environment existing quarries/
excavations should be used so as to prevent
proliferation of excavations and encourage optimal
resource recovery.
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Thank You
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