ACID MINE DRAINAGE
The Neighbour Law Implications
by
Ghassan Sader (SDRGHA001)
Submitted to The University Of Cape Town
in fulfilment of the requirements for the degree LLB
Faculty of Law, University of Cape Town
Date of submission: 16 September 2011
Supervisor: Professor Hanri Mostert
Department of Private Law, University of Cape Town
DECLARATION
1.
I know that plagiarism is wrong. Plagiarism is to use another’s work and pretend that it is one’s own.
2.
I have used the footnoting convention for citation and referencing. Each contribution to, and quotation in,
this opinion from the work(s) of other people has been attributed, and has been cited and referenced.
3.
This opinion is my own work.
4.
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i
ACID MINE DRAINAGE
The Neighbour Law Implications
by
Ghassan Sader (SDRGHA001)
Word Count: 9851 Words
This paper was written under the auspices of the LandLawWatch project. The views and opinions expressed here are
the author's own and should not be attributed to the LandLawWatch project or the University of Cape Town.
ii
Abstract
The decanting of acid mine drainage from mines situated along the West and Central Rand Basins in Gauteng have
caused water sources around the area to become highly acidic. Farmers around the area who use these sources for
the watering of their crops and drinking water for their livestock have suffered immense damages due to the
decanting of acid mine drainage. For these farmers it is important to know whether they have any remedies under the
South African law of nuisance against these mine companies for the damages they have suffered. Over the years
many of these mine companies have been sold. The crisp question here is to what extent can successors-in-title be
held liable for the decanting of acid mine drainage.
After determining that the decanting of acid mine drainage constitutes a nuisance, the remedy of damages is
discussed. The law is unclear on the question of fault in damages claims. This paper advocates a middle-ground
approach in determining whether fault is a requirement for a claim to be successful. This paper argues that the
middle-ground approach still has the potential to operate unfairly. To overcome this, two proposed qualifications to
the middle-ground approach are discussed. The paper concludes that successors-in-title of mining companies can
only be held liable for a portion of damages suffered by farmers due to the decanting of acid mine drainage.
iii
Table of Contents
Abstract ......................................................................................................................................................................... iii
1. Introduction ................................................................................................................................................................1
2. Is acid mine drainage a nuisance under South African law? ......................................................................................2
2.1 Private nuisance.......................................................................................................................................................3
2.2 Statutory nuisance ...................................................................................................................................................7
3. Can damages be claimed? ......................................................................................................................................10
4. A ‘middle-ground’ approach .....................................................................................................................................14
4.1 Justification for the middle-ground approach .........................................................................................................15
4.2 Problems with the middle-ground approach ...........................................................................................................16
4.3 Proposed qualifications to the middle-ground approach ........................................................................................18
4.3.1. Regal v African Superslate.................................................................................................................................18
4.3.2. English Law........................................................................................................................................................19
5. Conclusion ...............................................................................................................................................................21
Bibliography .................................................................................................................................................................23
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1. Introduction
Since its inception, the South African mining industry has helped South Africa in both economic and
infrastructural growth. Alongside this positive growth, the industry has ushered in a legacy of
devastating and long-lasting environmental pollution and water contamination due, in part, to acid mine
drainage (AMD). The effects of AMD had not been felt until 2002 when the first decant of AMD occurred
around the greater Johannesburg region.
AMD occurs when sulphate-rich minerals in rocks are exposed to oxidising conditions.1 It happens
naturally through rock and soil erosion.2 Natural oxidation is a slow process spanning over a number of
years,3 but mining both increases and accelerates the oxidation process.4 When extracting minerals
through surface mining, sulphate deposits and waste minerals are dumped back into the mine pit.5 This
pit then begins to fill with both rainwater and underground water, causing oxidation. The now acidic
water starts to escape from the pit, polluting surrounding areas. In underground mines, due to the water
and moisture in the shafts, these sulphate components oxidise and become sulphuric acid.6 This
sulphuric acid seeps into the underground waterways of the mine and finds its way into dams and
rivers, polluting water sources and the environment for kilometres.7 The escape of the acid water from
the mines in this way is known as the “decanting” of AMD.
In Gauteng, both the West and Central Rand Basins are filling up with AMD. The mines on these basins
are no longer in operation.8 The abandoned pit of the West Rand Basin started to fill with AMD, and in
2002 15 million litres of water decanted from the basin, causing the areas around the mines to be
seriously affected.9 It has been stated that if nothing is done about the filling-up of these basins by
October 2012, around 60 million litres of untreated AMD will begin to decant into the city of
Johannesburg itself, as the city is built right atop the Central Rand Basin.10 The acid water will begin to
erode foundations of buildings and other infrastructure causing buildings and roads to collapse.11
1 Lawhorn Acid Mine Drainage, The Unseen Enemy.
2 Lawhorn Acid Mine Drainage, The Unseen Enemy.
3 Lawhorn Acid Mine Drainage, The Unseen Enemy.
4 Jones Mine Overflow Disaster looms.
5 Lawhorn Acid Mine Drainage, The Unseen Enemy.
6 Lawhorn Acid Mine Drainage, The Unseen Enemy.
7 Lawhorn Acid Mine Drainage, The Unseen Enemy.
8 Jones Mine Overflow Disaster looms.
9 Pressly Business Times 1.
10 Jones Mine Overflow Disaster looms.
11 Jones Mine Overflow Disaster looms.
1
Farmers in the area have already been affected by the decanting of AMD and have experienced its
disastrous effects.12 The contaminated water is drunk by animals and used for watering crops. As a
result, both are dying.13
For those farmers who have already lost millions due to the decanting of AMD, it is important to know
whether they have any claims, in law, against the mining companies. This paper analyses whether
those farmers whose land has been affected by the decanting of AMD have any recourse in nuisance
law against mining companies. The crisp question is whether the decanting of AMD amounts to an
actionable nuisance.
To achieve the above, an in-depth analysis of nuisance-law principles in South Africa will be
undertaken. These principles will then be applied to the problem of AMD to determine whether it
constitutes a nuisance. If it does, the further question is whether bona fide successors-in-title of these
mines can be held liable for any of the damages caused by their predecessors-in-title. The
environmental requirements imposed on mining companies in the Mineral and Petroleum Resources
Development Act14 (MPRDA) and the National Environment Management Act15 (NEMA), necessitate a
further discussion on whether mining companies can be held liable under a statutory nuisance.16
2. Is acid mine drainage a nuisance under South African law?
In South African neighbour law three categories of nuisance exist namely public nuisance, private
nuisance and statutory nuisance. 17 A nuisance is considered a public nuisance if an act or omission by
a party endangers the public at large.18 A private nuisance occurs when an act or omission by one party
materially inconveniences another party’s “ordinary comfort, use and enjoyment”19 of his land. When a
condition or state of affairs has been declared to be a nuisance by means of legislative authority, a
statutory nuisance has been committed.20 This paper deals with the possibility that AMD is either a
private nuisance or a statutory nuisance. Public nuisance will not be considered, as it will be difficult to
show that the decanting of AMD endangers the public at large as presently it affects only a select group
of people.
12 Pressly Business Times 1.
13 Pressly Business Times 1.
14 28 of 2002.
15 107 of 1998.
16 Van Der Walt The Law of Neighbours 312.
17 Church & Church LAWSA 19 para 163.
18 Church & Church LAWSA 19 para 163.
19 Church & Church LAWSA 19 para 163.
20 Church & Church LAWSA 19 para 163.
2
2.1. Private nuisance
There are two important principles relating to nuisance law that one must consider: Firstly, ownership
has been regarded as the most complete right that a person can have in respect of property. 21 In Gien v
Gien,22 however, the court found that this is only a half-truth: a landowner should not exercise his
powers to the detriment of his neighbour.23 These opposing principles make it clear that there is a
tension in conflicting interests in neighbour law.24
In an attempt to balance these principles in nuisance disputes, the court in Holland v Scott25 set down a
test with an objective reasonable criterion with regard to the conduct or activity of the landowner.26 This
objective test enquires whether, in the circumstances, an activity of a landowner is “proper, becoming
and socially appropriate in light of the prevailing views of the community.”27 To help reach an equitable
outcome the courts have laid down various factors that are to be taken into account in determining
whether the plaintiff’s complaint is reasonable.28 Due to the refined scope of this paper, only factors
relevant to deciding whether AMD is nuisance have been discussed. It is vital to note the factors
mentioned are not a closed list of factors that are considered by the court and should not be applied in
“tick box” fashion.
One of the factors considered by the courts is whether there has been an interference with the physical
comfort of human existence, which exceeds the levels that one can expect a neighbour to tolerate.29 It
has been established in our law30 that the standard to be applied when looking at the physical comfort
of human existence is that of a “normal person” of sound, liberal and tasteful habits.31 The decanting of
AMD can be said to be interfering with the farmers’ physical comforts of human existence. As the
decanting of AMD is causing rivers and dams to fill with toxic water, farmers cannot be said to be
“perverse or over-scrupulous”32 by complaining of the problem.
Our courts have held that the conduct of a defendant will not be considered unreasonable if the land is
being used in a normal or natural way. Rather, it will be treated as “part of the costs of living together in
21 Van der Merwe & Pope “Ownership” in Wille’s Principles 477.
22 1979 2 SA 1113 (T).
23 Van der Merwe & Pope “Ownership” in Wille’s Principles 477.
24 Van der Merwe & Pope “Ownership” in Wille’s Principles 477.
25 (1882) 2 ECD 307.
26 Holland v Scott (1882) 2 ECD 307.
27 Van der Merwe & Pope “Ownership” in Wille’s Principles 478.
28 Church & Church LAWSA 19 para 175-180.
29 Van Der Walt The Law of Neighbours 239.
30 Prinsloo v Shaw 1938 AD 570 575.
31 Prinsloo v Shaw 1938 AD 570 575. Church & Church LAWSA 19 para 175.
32 Prinsloo v Shaw 1938 AD 570 575.
3
a society”.33 According to Church and Church,34 this implicitly means that in certain situations where the
utility of the use of the land outweighs the complainant’s ordinary comfort of human existence, the use
of the land to fulfil that social benefit will continue. Thus, the proportionality of the benefits gained by the
defendant against the harm suffered by the complainant are important considerations.35
It cannot be said that land being used for mining is being used in an unusual manner if all statutory
requirements for mining have been met.36 What is unreasonable is the decanting of AMD when
legislation explicitly prohibits any contaminated water from leaving the mining area before it is purified.37
In such a situation it can be argued that the land is not being used in an ordinary manner as legislative
requirements giving one permission to use the land for mining purposes have not been met.
Locality of the land is another important factor.38 If the complainant has “come to the nuisance”39 it is
unlikely that the court will grant the relief sought. For example if a person decides to live in an industrial
area filled with factories that emit fumes, he cannot easily succeed in claiming that these fumes are a
nuisance as he could have opted to live somewhere else; in such a case it will be said that the person
“came to the nuisance”. Likewise the court has to take into account the location of the defendant’s
land.40 The court will have to decide if the defendant is using the land in an appropriate manner, given
its location.41 If the harm is arising due to an appropriate use of the land given its location, the court is
less likely to find that the harm being caused is a nuisance.42
Farmlands are often established next to water sources due to the amounts of water needed in farming
operations. The fact that farmers can no longer freely and safely use the water from these sources
places a huge burden on them as now all water needs to be purified before use. Farmers cannot be
said to have “come to the nuisance” as fertile land will inevitably be close to a water source. Just as
farmers begin agricultural operations on fertile land, mining companies can only commence operations
on land that contains minerals. For these reasons both mining companies and farmers are not at liberty
to set up their operations in alternative locations. The use of the land, for both farmers and mining
companies, for this reason, can be considered reasonable given the location of their properties.
33 Church & Church LAWSA 19 para 182, Jecks & Co v O’Meara & Co 1904 TH 284.
34 Church & Church LAWSA 19 para 182.
35 Van der Merwe & Pope “Ownership” in Wille’s Principles 478.
36 See page 7 below.
37 These will be discussed later.
38 Gien v Gien 1979 2 SA 1113 (T).
39 Gien v Gien 1979 2 SA 1113 (T).
40 Van der Merwe & Pope “Ownership” in Wille’s Principles 478.
41 Holland v Scott (1882) 2 EDC 30.
42 Malherbe v Ceres Municipality 1951 (4) SA 510 (A).
4
In South African law a nuisance can arise even where properties are not directly adjacent. The
important consideration is that they must be situated such that the conduct of one neighbour annoys or
harms the other beyond tolerability.43 That the mine is further away, does not preclude the farmer
whose crops and livestock are being killed by the high acidity levels in the water, from claiming that a
nuisance exists. The farms being affected by the decanting AMD may not be directly adjacent to a mine
but the AMD is decanting into water sources, which are used for the irrigation of crops as well as water
for cattle and other livestock.
Another important factor that the courts will take into account is the duration of the alleged nuisance. 44
The decanting of AMD has been occurring since 2002. Even though the decanting has been occurring
sporadically over this period, the damage it has caused has long-lasting effects on the environment and
the farming industry. This acidic water has contaminated the water sources that the farmers use to
irrigate their crops and it will take years before the water is fit for irrigation again.
In South African law, a once-off disturbance will not, in general, be considered to be a nuisance.45 If
there is however a reasonable suspicion that the alleged single annoyance will be repeated, courts
have held that this can be regarded as a nuisance.46 The occurrence of decanting for almost the whole
of the past decade shows that the disturbance created by the decanting is not “once off”. Even if one
were to argue that the sporadic decanting is not a continuous disturbance, which is preferable for an
action based in nuisance law47 it is submitted that there is a reasonable suspicion that the decanting of
AMD will reoccur.48
The court will look to see whether the complainant could have mitigated or avoided the harm caused to
him in some way.49 In the Cosmos50 case the court held that if the complainant could have avoided or
mitigated the damage through minor expenditure or other precautionary steps, the gravity of the harm
suffered would be diminished. If no such steps were available to the complainant, the gravity of the
harm suffered would be influenced in a positive light in favour of the complainant.
In this situation it is extremely difficult, if not impossible, for the farmers to mitigate their losses. The
water used on a farm comes from the rivers and other natural water sources in the area. Even though
43 Van der Merwe & Pope “Ownership” in Wille’s Principles 478.
44 Church & Church LAWSA 19 para 177.
45 Badenhorst et al Silberberg & Schoeman’s The Law of Property 111.
46 Badenhorst et al Silberberg & Schoeman’s The Law of Property 111 and Rademeyer v Western Districts
Council 1998 (3) SA 1011.
47 Badenhorst et al Silberberg & Schoeman’s The Law of Property 111.
48 Jones Mine Overflow Disaster looms, See note 1 above.
49 Cosmos (Pvt) Ltd v Phillipson 1968 (3) SA 121.
50 Cosmos (Pvt) Ltd v Phillipson 1968 (3) SA 121.
5
some of the water used to irrigate crops and maintain livestock is rainwater, most water is kept in manmade dams and boreholes. Both these sources of water have their origins in the now contaminated
rivers. The only way that farmers could be expected to mitigate their loss is by purifying the water before
use. This is a very expensive project and given the quantities of water used in farming it is
unreasonable to expect every farmer to purify their water before use.
The last factor to take into account is whether the defendant could have taken any practicable
measures to avoid the harm from occurring. In so doing the courts will also enquire into the utility of the
defendant’s activity. When looking at the utility of the defendant’s activity the court will look at whether,
in carrying on the activity in question, the defendant could have taken reasonably practicable steps to
avoid any interference with the complainant’s comfort in the use of his land.51 The greater the possibility
that the defendant could have prevented the harm, the more it affects the utility of the activity being
preformed adversely.52 In trying to determine whether the defendant could have reasonably prevented
the harm the courts have looked at whether the activity of the defendant could have been performed at
a different time, in a different manner or at a different place.53 The court will also look at whether or not
the activity could have been preformed with a greater degree of skill on the part of the defendant.54 If
the court finds that the defendant could have preformed the activity in question differently, the activity is
likely to be seen as an unreasonable interference on the defendants’ rights to use and comfort of his/her
land by the complainant.55
The formation of AMD is a problem in all countries with large mining industries. The decanting problem
had already been foreseen, albeit not taken seriously, from as early as 1956.56 Since that year mining
companies have had statutory obligations to ensure that once they had finished mining the land it be
returned to a state where it is fit for use again. The sporadic decanting of AMD that has taken place
since 1956 is evidence that mining companies have not adhered to their statutory duties under the
various acts.57 This lack of compliance with legislation can be said to be unreasonable. Had the mines
adhered to their statutory obligations the build up of AMD would have at least been manageable. This
lack of compliance with statutory obligations shows that the mining companies could have performed
their mining operations differently.
51 Church & Church LAWSA 19 para 185.
52 Church & Church LAWSA 19 para 185.
53 Starfield & Starfield v Randles Brothers & Hudson 1911 WLD 175 see also Allaclas Investments (Pty) Ltd and
Another v Milnerton Golf Club and Others 2008 (2) ALL SA 1 (SCA).
54 Regal v African Superslate (Pyt) Ltd 1963 (1) SA 102.
55 Church & Church LAWSA 19 para 185.
56 Mines and Works Act 27 of 1956.
57 MPRDA 28 of 2002, Mines and Works Act 27 of 1956 and Minerals Act 50 of 1991.
6
It is submitted that overall decanting of AMD causes harm and annoyance to farm owners that far
outweighs the reasonableness of the conduct of the mining companies allowing the decanting of AMD.
Even though the mining industry is an important industry in the country, providing approximately 1
million jobs and contributing to 18% of South Africa’s GDP,58 the fact the decanting of AMD has caused
farmers to lose large quantities of harvests and livestock while the mining industry continues to thrive 59
is unreasonable. The loss of livestock and crops has the effect of increasing food prices for all South
African’s. For these reasons the damage that the decanting of AMD is causing far outweighs its utility to
society. Instead of being a utility to society AMD is leaving in it’s midst detrimental effects that will be felt
for decades to come. The decanting of AMD can therefore be seen as a nuisance.
2.2. Statutory nuisance
This section focuses on a different category of nuisance namely statutory nuisance. The question being
asked is: can the decanting of AMD be considered a statutory nuisance over and above being
considered a private nuisance at common law?
When an owner of land uses his land in a way that “contravenes statutory or administrative limits or
guidelines laid down to protect the interests of neighbouring owners and users of land”60 he has
committed a statutory nuisance. Therefore one could argue that if provision has been made in
legislation against practices that allow contaminated water from leaving the mine, a mining company
that allows contaminated water (for example AMD) to leave its premises has committed a statutory
nuisance. Until 1977 mining companies did not have any legislative duties or regulations to follow when
it came to preserving the environment around their mining operations.61
The Mines and Works Act62 allowed the Minister of Minerals and Energy to implement regulations with
regard to certain provisions of the Act. In 1977 the regulations to the Mines and Works Act were
published. Chapter 5 of the regulations dealt with the protection of the surface of the land and the
prevention of pollution due to mining operations.63 With regard to AMD regulation 5.9.1 and 5.9.2 are
the most significant:
58 Leon Sham Media Corp.
59 Pressly Pump plants plan to treat toxic water in Business Times (2011.02.23) 1.
60 Van Der Walt The Law of Neighbours 312.
61 Glazewski Environmental law in South Africa 572.
62 27 of 1956.
63 Glazewski Environmental law in South Africa 578.
7
“Regulation 5.9.1: Water containing poisonous or injurious matter in suspension or solution must be effectually
fenced off to prevent inadvertent access to it, and notice boards shall be put up in suitable
places to warn persons from making use of such water
Regulation 5.9.2: In no case may water containing any injurious matter in suspension or solution be permitted
to escape without having been previously rendered innocuous.”64
These regulations remained in force under the Minerals Act.65 The question of whether the above
regulations attracted strict liability for damage was considered in Lascon Properties (Pty) Ltd v
Wadeville Investment Co (Pty) Ltd and another.66 The court held that it cannot imagine that the
Minister’s intention was that a complainant would have to prove dolus or culpa in order to be successful
in claiming compensation due to a breach of these regulations.
The Minerals Act67 was replaced by the MPRDA.68 Section 38 of the MPRDA69 states that every mining
company is responsible for rehabilitating the land to its natural predetermined state once mining
operations cease. Further, the section holds that the holder of a mining permit or right is responsible for
any environmental damage, caused either inside or outside the boundaries of their land, due to their
mining operations. Section 38 explicitly states that all mining companies have to comply with chapter 5
of the National Environmental Management Act (NEMA).70 Chapter 5 of NEMA71 sets down national
environmental principles, which are based on the foundation of sustainable development.72 If section 38
is read in line with the decision of Lascon Properties73 strict liability will fall on the mining company to
compensate farmers for the loss that the decanting of AMD has caused them.
The current owners of the mines are only partly to blame for the levels of AMD currently being
experienced.74 Even though the current mining company is the one that effectively caused the nuisance
and/or breached their legislative requirements, is it fair to expect that company to pay, in full, damages,
which were caused by it as well as its predecessors-in-title? Or could there be an argument limiting the
scope of these mine owners’ liability? It is submitted that the latter question can be answered in the
64 Regulations 5.9.1 and 5.9.2 under the Minerals Act 50 of 1991.
65 50 of 1991.
66 1997 JOL 1322 W.
67 50 of 1991.
68 28 of 2002.
69 28 of 2002.
70 107 of 1998.
71 107 of 1998.
72 Glazewski Environmental law in South Africa 581.
73 1997 JOL 1322 W.
74 See page 1 above.
8
affirmative. One need only look to section 38 of the MPRDA75 coupled with the case of Regal v African
Superslate (Pty) Ltd76.
Section 38(1)(e) of the MPRDA77 states that a holder of a mining or prospecting right is responsible for
any environmental damage as a result of HIS OR HER (emphasis added) operations, whether those
damages occur inside or outside the boundaries of the right holders land. Reading this provision it is
submitted that the act links the possible damage caused to the environment to the respective
company’s mining operation and not to the company as owner of the land. Reading the provision in this
way makes it clear that the act envisages that a mining company should be responsible for any damage
it caused due to its mining operation as apposed to being responsible for damage caused by virtue of
being the owner of the land. Thus the current mine owner would only be strictly liable78 for his proportion
of AMD that has caused damage to surrounding areas.
To strengthen this argument the obiter in Regal79 is helpful. In Regal80 the court held that the law of
nuisance is based on the principles of reasonableness and fairness.81 In the case of AMD it is argued
that it would be both unreasonable and unfair to expect a successor-in-title to avert the damage that the
decanting of AMD has caused. The levels of contamination have reached a point where one can no
longer simply purify the water.82 This would mean that the mining company would have to spend
exorbitant amounts in trying to decontaminate water that was not contaminated by their operations. This
cannot be reasonable.
To counter this some may argue that before acquiring the mine the successor-in-title should have
foreseen the decanting of AMD from that mine if a proper due diligence was conducted, and so being
liable for the full extent of damages is not unreasonable. However, when a due diligence is conducted
the main focus is on whether the mine complies with all necessary legislative requirements. The due
diligence would focus on whether the mine has an approved environmental management program or
plan,83 whether the Minister has been notified that the mine owner intends on ceasing operations and
whether a closing certificate has been issued by the Minister.84 If all these requirements have been met
the buyer of the mine cannot reasonably be expected to know of the impending decanting of AMD from
75 28 of 2002.
76 1963 (1) SA 102 (A).
77 28 of 2002.
78 Follwing the decision in lascon properties.
79 1963 (1) SA 102 (A).
80 1963 (1) SA 102 (A).
81 Van der Walt Casebook: Law of Property 67.
82 Pressly Business Times 1.
83 As is required by section 39 of the MPRDA and section 39 of the Minerals Act.
84 Section 43 of the MPRDA.
9
the newly acquired land. This is because according to the MPRDA85 and the Minerals Act86 the Minister
will only issue a closing certificate if he is satisfied that all environmental and pollution issues have been
successfully and proper dealt with. In this situation it would be unreasonable to expect the successor-intitle to be liable for the damages caused. This approach would be in line with the judgment of Regal.87
Using these arguments it is submitted that even though a statutory nuisance attracts strict liability, it
only does so with regard to the successor-in-titles mining operations as well as any foreseeable and
reasonable damages.88 To be liable for the full extent of damages that flow from the decanting of AMD
have been shown to be both unfair and unreasonable.
3. Can damages be claimed?
In South African law, a complainant has a choice between two remedies: a prohibitory interdict or an
action for damages.89 To obtain an interdict, a complainant must meet three requirements: the
complainant must have a clear right; that right must have been infringed and no alternative remedy
would satisfactorily address the situation.90
In certain circumstances, such as in the situation at hand, if the nuisance caused patrimonial loss, an
action for damages becomes available to the complainant.91 To decide whether the damages should be
granted to the complainant, our courts have stated that the test to be used is one of reasonableness. 92
This paper will concentrate only on the remedy of damages, as has been mentioned, the decanting of
AMD has resulted in farmers losing livestock as well as crops93, thus causing them patrimonial loss.
The South African law of neighbours has developed from both Roman-Dutch and English law. The
traditional rules of neighbour law were adopted from Roman-Dutch law while principles of nuisance
were adopted from English law.94 This casuistic approach has caused uncertainty in South African
neighbour law. The major confusion is how the principles of property law and principles of delict
interplay. The vexing question is whether the complainant must prove culpa on the part of the defendant
to be eligible for damages. For present purposes, the question is: would a farm owner need to show that
85 29 of 2002.
86 50 of 1991.
87 1963 (1) SA 102 (A).
88 See page 19 below.
89 Van der Merwe & Pope “Ownership” in Willie’s Principles 481.
90 Holland v Scott (1882) 2 ECD 307; Gien v Gien 1979 2 SA 1113 (T); Van der Merwe & Pope “Ownership” in
Willie’s Principles 481.
91 Church & Church LAWSA 19 para 218-222.
92 Malherbe v Ceres Municipality 1951 (4) SA 510 (A).
93 See Page 2.
94 Van Der Walt The Law of Neighbours 2.
10
the mining company was negligent in allowing the decanting to occur, or could he merely show that
decanting is a nuisance?
In Holland v Scott95 the court held that the principles of both the Roman-Dutch law as well as English
law with regard to nuisance were the same. In English law culpa or intent on the part of the defendant
need not be proved.96 However, the reason as to which principles, Roman-Dutch or English, apply is
important as each provide different remedies because a nuisance is considered a tort in England while
Roman-Dutch remedies lay within property law.97 Compensatory remedies, like the remedies for the tort
of nuisance, belonged to the area of Aquillian liability in Roman-Dutch law.98 South African courts
realised that the Roman-Dutch approach was impractical,99 and so to compensate a complainant for
damage caused assumed an approach similar to the tort of nuisance in the English common law.100
The above position remained the view of South African courts until the 1963 case of Regal v African
Superslate.101 The court held that the English law principles of liability for nuisance had not been
incorporated into South African law and the Roman-Dutch principles of neighbour law apply. In his
judgment Steyn CJ discusses liability for damages in what seems to be the language of Aquilian
actions.102 Steyn CJ holds that a complainant will only be successful in a claim for damages if he can
prove that the defendant was negligent in allowing the damage to occur.103 It appears that the court is of
the opinion that the defendant must have been under a duty to act, and is therefore not strictly liable,
before damages can be a justifiable remedy.104 It must be remembered the above statements are
merely obiter.
Since Regal,105 opinions have differed as to whether liability for damages is strict or fault-based. Prior to
Regal106 South African common law had been incorporating the English tort of nuisance into property
law.107 These differing opinions therefore stem from the question of whether a claim for damages lies in
the law of property or in the law of delict. The argument for strict liability is based on the fact that our
neighbour law principles have developed in a casuistic fashion drawing on principles from two systems
95 1882 EDC 307.
96 Badenhorst et al Silberberg & Schoeman’s The Law of Property 114.
97 Van Der Walt The Law of Neighbours 19.
98 Van Der Walt The Law of Neighbours 19.
99 Van Der Walt The Law of Neighbours 19
100 Van Der Walt The Law of Neighbours 19.
101 1963 (1) SA 102.
102 Van Der Walt The Law of Neighbours 32.
103 Van Der Walt The Law of Neighbours 32.
104 Van Der Walt The Law of Neighbours 32.
105 1963 (1) SA 102.
106 1963 (1) SA 102.
107 Badenhorst et al Silberberg & Schoeman’s The Law of Property 114.
11
of law.108 This gave rise to a number of distinct remedies which each had its own requirements for
liability.109 The requirements for liability under these distinct remedies were not based on the Aquilian
principles of fault.110 To the strict liability school of thought this casuistic development shows “an
historical explanation for the fact that liability for damages in nuisance does not depend on Aquilian
fault”.111 Proponents of this school of thought furthermore believe that by having strict liability in
nuisance cases justice will be better served. They state that expecting a complainant to bear the onus
of proving fault is counter-intuitive, because if a neighbour caused damage to another’s property he
should account for such damage without the owner of the damaged property being expected to prove
fault on the wrongdoers part.112 Secondly, a neighbour who has caused damage to another’s property
should not escape liability on the ground that the harm-causing conduct was set in motion by his
predecessor-in-title.113
The second argument outlined above is in line with a principle in neighbour law laid down in Regal:114
liability for a nuisance stems from the power of control conferred on a person as the owner of the land.
What this means is that in appropriate circumstances, if a third party creates a nuisance (for example a
predecessor-in-title) the current landowner can be held liable (in certain instances which will be
discussed later) for the damages caused by the nuisance. The strict liability approach gives effect to the
abovementioned principle. If one uses the fault-based approach (discussed below) it is clear that this
principle will be undermined. If a predecessor-in-title is to blame for the nuisance and the resultant
damage to a neighbouring land, the injured party will not be able to prove the required fault on the part
of the landowner on whose land the nuisance emanated. Rather, the complainant will have to claim
from the predecessor-in-title. This could undermine the principles of neighbour law completely and is
not feasible when having regard to the Regal115 principle.
Using the strict liability approach has its own set of difficulties. It is submitted that strict liability can
operate harshly on landowners in certain situations. A good example of such a situation is the decanting
of AMD from mines that have been taken over by successors-in-title. The best way to illustrate the
problems that one will encounter is by way of example:
108 Badenhorst et al Silberberg & Schoeman’s The Law of Property 115.
109 Badenhorst et al Silberberg & Schoeman’s The Law of Property 115.
110 Badenhorst et al Silberberg & Schoeman’s The Law of Property 115.
111 Badenhorst et al Silberberg & Schoeman’s The Law of Property 116.
112 Badenhorst et al Silberberg & Schoeman’s The Law of Property 116.
113 Badenhorst et al Silberberg & Schoeman’s The Law of Property 116.
114 1963 (1) SA 102.
115 1963 (1) SA 102.
12
Mine company X decides to end its operations and closes the mineshafts and pits that it used for its
mining operations. Mining company X is under statutory duties 116 to ensure that the land used by it is
returned to a state fit for use again after mining. This land is then sold to mine company Y who begins
mining operations in a new shaft, which it dug after obtaining the land. According to the knowledge of
company Y, company X has complied with all its statutory regulations when ceasing its operations. A few
years after the sale company Y realises that the shafts of company X have been decanting AMD and has
caused damage to surrounding farmlands.
Taking this situation, would it be reasonable to impose liability for the damages caused on company Y?
According to Regal117 company Y can be held liable even as a successor-in-title. However, the court
placed a “proviso” for the liability of successors-in-title stating that: a successor-in-title can only be held
liable for a nuisance created by a predecessor-in-title if the damage was or should have been
reasonably foreseen by the new owner and an unfair burden is not placed on the defendant in averting
the damage.118
Assuming that the court in the scenario finds that the decanting of AMD from an old mine shaft is or
should have been reasonably foreseeable by the new owner, the court will find, due to strict liability, that
company Y, the successor-in-title, is liable for the damages caused by company X. It is submitted that
this is not a reasonable outcome. Company Y was under the impression that company X complied with
and met all of its statutory obligations when ceasing its operations and selling the mine to company Y.
As mentioned previously when conducting a due diligence, prospective buyers focus on the profitability
of the venture. When determining this profitability a prospective buyer would ensure that the mine has
met and complied with all legislative requirements. By being fully compliant with legislation it would be
reasonable for the prospective buyer to assume that all water leaving the mine is being purified and
there is no excess build-up of AMD. Furthermore, company Y did not use any shafts of company X.
Rather it created its own shafts through which it is carrying out its operations. Using the strict approach
however, company Y will be liable because it is the owner of the land. The illegal activities and the
resultant damage from those activities that arose due to the lack of compliance on the part of company
X would not shield company Y from liability. This cannot be reasonable.
The alternative school of thought is that of fault-based liability. Here for one to be successful in an
action for damages under the law of nuisance the complainant must prove fault on the part of the
116 Mines and works Act 27 of 1956 and regulations and NEMA 107 of 1998.
117 1963 (1) SA 102.
118 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102.
13
landowner where the nuisance began.119 The application of fault-based liability, like strict liability, has
both positive and negative aspects. The positive aspects are seen in the scenario given above;
Company Y would not be held liable for the decanting of the AMD not caused by its operations,
provided that they were not negligent. This approach seems to be in line with the obiter in Regal120 and
protects a landowner from being held liable for damages caused by his predecessor-in-title. An oftencited example supporting this approach is that a nuisance may cause harm to a person’s land as well as
to someone driving past on a road.121 This raises the question: why should the landowner be able to
claim damages based on strict liability in neighbour law, while the driver has to prove fault in terms of
Aquilian liability?122 The argument proceeds to state that there is no policy reason why one person’s
interests should be better protected than another’s. This, like the argument for strict liability, is
compelling. The arguments, which highlight the negative aspects of this approach, have been discussed
above.
The above discussion highlights that each extreme approach has the potential to operate unfairly
against either the complainant or the defendant. In causu the strict liability approach places the mine
owner in a potentially vulnerable position by holding the company liable for the full extent of damages.
The fault-based approach places an undue burden on the farmer who has to prove fault on the part of
the mine company. While this may protect the mine company the farmer runs the risk of not having an
adequate remedy to reclaim his losses.
4. A ‘middle-ground’ approach
The inconsistencies and problems with each view probed some authors to adopt what will be called a
Middle-ground approach (MGA). According to Badenhorst et al,123 who advocate for this approach,
liability should be strict “where the damage has been caused as a result of activities which a priori
involve a high risk of prejudice to a neighbour”.124 If the damage results from of an activity that cannot
be classified as a priori risky, then a complainant would have to prove culpa in terms of Aquilian liability.
It is submitted that whether an activity creates or involves a high risk of prejudice to a neighbour should
be judged according to a test of reasonableness. Having regard to all the facts, one should ask whether
a reasonable person would or should have foreseen that a particular activity is likely to prejudice the
neighbour and cause damage to the neighbouring land. If the activity is found to likely prejudice the
119 Badenhorst et al Silberberg & Schoeman’s The Law of Property 116.
120 1963 (1) SA 102 (A).
121 Jaffey 1970 SALJ 437.
122 Jaffey 1970 SALJ 437.
123 Badenhorst et al Silberberg & Schoeman’s The Law of Property 116.
124 Badenhorst et al Silberberg & Schoeman’s The Law of Property 116.
14
neighbour and the damage has been caused as a result of the performance of that activity then strict
liability should apply. If the activity itself is not likely to prejudice the neighbour and the damages
suffered are a result of the performance of that non-risky activity the complainant would have to prove
culpa as required under Aquilian liability.
In determining if the activity can involves a high risk of prejudice it is submitted that factors such as the
following should be taken into account: the type of activity being performed on the land given the
location of the land; the potential of the activity to cause harm to neighbours; and whether the defendant
is using the land unreasonably or unlawfully. This however, must not be taken as a closed list but
merely as a guide that will help the court determine the prejudicial effect of the activity vis- á- vis the
complainant.
4.1. Justification for the middle-ground approach
This MGA can be justified on several grounds. According to Van der Walt125 by adopting this approach
one achieves the greatest sense of justice. He argues that in situations where an activity creates a high
risk of prejudice and therefore a high risk of creating damage to a neighbouring land, one would be
justified in placing strict liability on the landowner who was in charge of such a high-risk activity.126 If
however, the activity is not considered to cause prejudice to the neighbouring landowner and cannot be
classified as a risky activity, having faultless liability would be unfair.127 The reason it would be unfair is
that the defendant landowner would not have expected the neighbour to suffer damages. Because the
defendant did not expect the damages, the defendant landowner would not have been able to take
reasonable steps to avert or mitigate the damages caused. It would therefore be unfair to impute strict
liability on someone in such a situation.
The converse of the above will also hold: Where a landowner partakes in a particularly risky activity, he
should know that his activity has the potential to cause damage to the landowners around him. Due to
the fact that he brought the risk onto himself he should bear the liability for any damage that is caused
due to the activity. Knowing that the activity is risky, the defendant landowner could, and should have
taken reasonable steps to prevent the damage from occurring. This is in line with the basic neighbour
law principle that one may not use his land in a way that will be detrimental to his neighbours.128
125 Van der Walt risiko-aanspreeklikheid uit onregmatige daad 404-405.
126 Van der Walt risiko-aanspreeklikheid uit onregmatige daad 404-405.
127 Van der Walt risiko-aanspreeklikheid uit onregmatige daad 404-405.
128 Van der Merwe & Pope “Ownership” in Wille’s Principles 478.
15
4.2. Problems with the middle-ground approach
Although the MGA is submitted to be more desirable it still has its shortcomings. To discover the
problems that arise when applying the MGA a step-by-step application of the approach will be
conducted below with regard to the decanting of AMD.
Accepting that the decanting of AMD is a nuisance, the next part of the enquiry is to determine whether
the activities performed on mines is prejudicial to neighbouring landowners because of the potential risk
of damage. To do this, one would use the proposed reasonableness test outlined above. There are
good grounds for accepting that mining prejudices neighbouring land: Mining activity is a densely
legislated area.129 The legislation does not only deal with the actual methods of safe mining, but also
deals with the pollution, noise and disposal of waste products as a result of mining activity. It can be
argued that the dense and stringent legislation suggests that the legislature understands mining’s
potentially prejudicial and risky effect. Even well after a mine has ceased its operations; the risk of the
mine causing damage still exists. A closed or abandoned mine can at anytime cave in if proper
rehabilitation procedures are not followed by mining companies.130 Land that surrounds these mines is
always at risk of damage. The fact that mining can cause both physical and financial damage to a
neighbouring land shows its potentially prejudicial effect on neighbouring landowners. The decanting of
AMD is a prime example of the type of prejudice that landowners could suffer.
From the above discussion, it is submitted that mining can be seen as an activity that has a high degree
of financial and physical prejudice against a neighbouring land. This prejudice brings with it a very real
and reasonable threat of damage to the neighbouring property. The MGA would ascribe strict liability to
mining due to it being classified as a risky activity.
This finding entails that mine owners should be aware of the risks that their activities pose to
neighbouring land. As the mine companies introduced the risk into the community it is with no difficulty
that one can say that they should bear the burden of ensuring the risk of damage never materialises.
AMD is a direct by-product of mining.131 The damage that has been caused by the decanting of AMD is
therefore directly linked to the risk-creating activity, mining. In attempting to mitigate the effects of
decanting AMD mine companies should take appropriate measures to ensure that water leaving the
mine is purified. Not only should the mine companies have done this by virtue of the fact that they are
carrying out risky activities, but also because they are under legislative duties to ensure the quality of all
129 Mining has been regulated since at least 1956 by the Mines and Works Act and now by the MPRDA 28 of
2002.
130 Ohio department of natural resources Abandoned Mine Guide 7.
131 Lawhorn Acid Mine Drainage, The Unseen Enemy.
16
water leaving the mine is satisfactory.132 By being under such a duty the installation and maintenance
of purification plants ensuring that non-toxic water does not leave the mine is a reasonably expected
method of ensuring that minimal amounts of toxic water leaves the mine. The fact that many of these
companies did not live up to their legislative requirements further bolsters the argument that strict
liability should be placed on these companies.
Though the above approach, on the face of it, seems to address the situation in a satisfactory manner, it
does not take account of the fact that since the commencement of mining in the West Rand and Central
Rand Basins many of the mine companies have either merged with other companies or have ended
their mining operations and sold their land. This is important because, as mentioned earlier, the
formulation and build up of AMD is a gradual process.133 The AMD that has built up within the Basins
can in no way be attributed only to the mines that are in operation along the Basins today. For example
on their land a mine company could have 10 million litres of AMD.134 However the company has bought
the mining land over from another company recently and therefore has only contributed 1 million litres of
AMD to the total of 10 million litres that is on its land.
In light of the above observation the appropriateness of the MGA becomes doubtful. Looking at the
example given above it cannot be said to be reasonable that a successor-in-title be liable for the
damage caused by the entire 10 million litres of AMD when he only contributed 1 million litres. Even
where a company conducts a due diligence it will be enquiring into whether the current owner of land
has met all the statutory requirements that allow lawful mining. If the current mine owner has all the
required statutory certificates issued by the Department of Minerals and Energy it is reasonable for the
buyer to assume that the seller has complied with all the statutory obligations of rehabilitating the land
and purifying the water.135 If they have not done so, the required certificates would not have been
issued.136 It would be unreasonable to expect the buyer to conduct in-depth inspections into the
purification methods of the mine if the Department of Minerals and Energy has approved such
procedures already. If the due diligence shows that the mine, as it stands, does not meet legislative
requirements and regulations and the company still went ahead and purchased the mine, the new mine
company should accept full liability. This seems reasonable as the buyer in such a case has the
ultimate power to avoid liability by either not purchasing the mine, or entering into an agreement with
the selling company that the sale will not continue until all legislative requirements have been met.
132 Present since the Mines and Works Act 27 of 1956 and remains in the MPRDA 28 of 2002.
133 Lawhorn Acid Mine Drainage, The Unseen Enemy.
134 Pressly Business Times 1.
135 See page 7 above.
136 Required by Section 12 of the Minerals Act 50 of 1991, the Mines and Works Act 27 of 1956 or Section 38 the
MPRDA 28 of 2002.
17
Obviously if the same mining company has been owner of the land since mining operations began on
that land, the MGA will not prejudice the company.
4.3. Proposed qualifications to the middle-ground approach
The major problem with adopting the MGA without any qualifications is that it can act unreasonably in
situations where high-risk activity land is obtained by successors-in-title. It will be argued below that
there are two possible solutions to overcoming this problem. The first of these can be found Regal137
while the second can be found in English common law.
4.3.1. Regal v African Superslate
In Regal138 the complainant applied for an interdict against the defendant to stop large quantities of slate
washing onto his land. The court stated that the South African law of neighbours is based on the
principles of fairness and reasonableness.139 Acknowledging the general property law principle that a
landowner is free to do with his land as he pleases the court held that this right does have limitations
and must be exercised with due care and regard to ones neighbours.140 On the one hand a person must
exercise his rights having regard to his neighbour while on the other he has to allow his neighbour to
exercise her rights. Both these rights and duties, the court said, must be exercised within the “limits
prescribed by reason.”141 When looking at fairness the court stated that a landowner could only be
responsible for damage caused to a neighbour when it is fair to expect the landowner to avert the
damage causing conduct.142 If all reasonably practicable steps have been taken by the defendant to try
to avert the damage, it would be unfair and unreasonable to expect him to be liable for the damages.
The converse of this also true.
Steyn CJ held that a successor-in-title would be liable for damages caused by his predecessor-in-title to
the extent that the successor-in-title is capable of preventing the direct detrimental effect of the activity
to neighbouring land.143 In addition the court held that the steps that should be taken by the successorin-title should be reasonably practicable. The steps to prevent the damage should not place an
137 1963 (1) SA 102.
138 1963 (1) SA 102.
139 Van der Walt Casebook:Law of Property 67.
140 Van der Walt Casebook:Law of Property 67.
141 Van der Walt Casebook:Law of Property 68.
142 Van der Walt Casbook:Law of Property 69.
143 Regal v African Superslate (Pty) Ltd at 109D.
18
unwarranted and disproportionately heavy obligation on the successor-in-title.144 In this case, the
building of the porous dam was seen as unreasonable. The interdict was therefore not granted.
By qualifying the MGA with the above reasoning, it is submitted that more equitable outcomes will be
achieved. If the nuisance is regarded as emanating from a high-risk activity one cannot expect the
successor-in-title to be liable for the entire damage that has been caused unless it was reasonable for
him to have averted the damage causing activity. With regard specifically to the case of AMD it is
submitted that it is extremely unreasonable to expect mine companies that have been in operation for
only a few years to be liable for all the damage caused by the decanting of AMD from their land. The
levels of AMD in unused mine pits has reached such high levels that the contaminated water can no
longer be purified using conventional methods.145 In addition much of the contaminated water has
already decanted into rivers and dams and cannot be sealed off in any way.146 Asking a mine to invest
in very expensive methods of purifying highly contaminated water when they only partly contributed to
the contamination would be unreasonable and would pose a heavy unwarranted burden on these
mines. Expecting mines to be liable for damage caused to water that has already decanted and is out of
their control cannot be reasonable either. This would then ensure that mines that are in operation today
are only liable, strictly, for the portion of the damages that they have created.
4.3.2. English Law
The English tort of nuisance is based on the principles of strict liability.147 English courts have begun to
realise that in today’s society having strict liability as a blanket rule with no deviations or exceptions
operates unfairly at times.
In 1994, the House of Lords handed down a groundbreaking judgment in the case of Cambridge Water
Co Ltd v Eastern Counties Leather Plc.148 Eastern Counties Leather (ECL) was a leather manufacturer.
In order to prepare and treat their leather ECL used a certain toxic chemical. When applying this toxic
chemical to the leather the chemical would often spill onto the floor of the tannery. The chemical used
was not soluble in water and evaporated quickly. It was later discovered by Cambridge Waters Co
(CWC) that the chemical had seeped into the ground and affected its boreholes 1.3 miles away.
On appeal to the House of Lords, ECL’s main argument was that because the chemical was known to
evaporate quickly it was not foreseeable that it would seep into the ground and cause the damage
144 Regal v African Superslate (Pty) Ltd at 112F-113A.
145 Pressly Business Times 1.
146 Pressly Business Times 1.
147 Van Der Walt The Law of Neighbours 260.
148 1 ALL ER 53.
19
complained of and so they could not be held liable for the damage to CWC’s water. The House of Lords
agreed with the argument put across by ECL. In the judgment Lord Goff re-iterated that the English law
of nuisance is based on the principle of strict liability. However, the principle of strict liability is kept in
check by the principle of a “reasonable user”.149 If it is found that the user of a land is reasonable in the
use of his land and damage is caused, no liability can be attributed to him. However, where the user of
the land uses the land unreasonably, even while exercising reasonable care and skill, any damage that
his use causes will be subject to strict liability.150 The court then went on to say that where it is found
that a defendant acted unreasonably “it by no means follows that a defendant should be held liable for
damages of a type which he could not reasonably have foreseen”.151 The justification given by the court
for this proposition is that if a person has to prove foreseeability when claiming damages for a personal
injury there is no reason why this should not hold for damages caused to a person’s land. 152The court
held that foreseeability is a necessary prerequisite that needs to be proved by a plaintiff before he can
be successful in a claim for damages. The court therefore found in favour of ECL.153
By adopting the reasoning of the court in Cambridge Waters154 one will overcome the unreasonable
application of the MGA. Adopting this approach has a number of benefits. Firstly, one eliminates the
severity of strict liability in certain cases. By looking into the foreseeability of the damages a fair decision
is reached on whether to hold the defendant liable. If the damages were foreseen it is fair that he be
held liable for them, whereas if they were not foreseen being held liable would cause grave injustice.
Furthermore, it is submitted that by enquiring into foreseeability one will not tamper with the fault
element and this will ensure certainty in the law ensuring that every industry knows whether their activity
will attract strict or fault based liability. Finally, by adopting this approach one ensures that a plaintiff will
not be left without a remedy. The plaintiff would still be able to claim for the damages that the defendant
could have foreseen, albeit not the full extent of damage that was caused.
In adopting this approach it is conceded that an appropriate method of proving the quantum of damage
and to what extent the current mine company has contributed to the damage is difficult. However, an
attempt to solve this problem falls outside the scope of this paper. If the courts in South Africa, instead
of adopting the MGA, choose to adopt the fault-based approach as enunciated by Rumpff JA in Regal155
undesirable consequences may follow. Mine companies would only be held liable under the law of
149 Cambridge Water Co Ltd 1 ALL ER 53 at 54.
150 Cambridge Water Co Ltd 1 ALL ER 53 at 54.
151 Cambridge Water Co Ltd 1 ALL ER 53 at 72.
152 Cambridge Water Co Ltd 1 ALL ER 53 at 72.
153 Cambridge Water Co Ltd 1 ALL ER 53 at 80.
154 1 ALL ER 53.
155 1963 (1) SA 102 at 120G.
20
nuisance if it can be proven that they had a duty of care at common law to stop the decanting of AMD.
Proving this common-law duty of care may not be easy and may be an unfair and unnecessary hurdle
for farmers to cross in order to succeed in their claims.
5. Conclusion
The decanting of AMD is affecting every South African directly or indirectly. This paper has examined
whether a farmer may claim, in neighbour law, the damages he has suffered from a mining company
due to the decanting of AMD.156 In answering the question, the problems relating to claiming damages
as a remedy in neighbour law were highlighted.157 One view is that to be successful in a claim for
damages fault is a necessary element that needs to be proven. At the other end of the spectrum it has
been argued that damages under neighbour law do not require the proof of fault and attracts strict
liability. This paper has argued, specifically with regards to AMD, that neither of these extreme views is
viable.158 Strict liability will prejudice mining companies who have been in operation for short periods of
time by causing them to bear the full costs of damages to farmers even though their contribution in the
actual damage caused was minimal. Fault-based liability on the other hand prejudices the agricultural
industry because of the difficulty that lies in proving that a single mine company is to blame for the
damages.
A MGA was argued to be the best solution to the dilemma.159 By adopting the MGA with the
qualifications explained in the paper160, particularly the English law qualification put across in the case
of Cambridge Waters161 it has been shown that an equitable and fair outcome can be achieved for both
parties.
Due to the incompetence of mining companies to ensure proper procedure when shutting down their
operations coupled with the governments ineffective mechanisms of ensuring this when granting
closure certificates162 the threat of decanting AMD in South Africa should no longer be taken lightly. It
has become a problem which far exceeds the resources available to any individual mine company. The
only solution would be for the state to intervene as they, by granting mine closure certificates without
checking that proper procedure was followed, are as much to blame as the mining industry.
156 See page 2.
157 See page 10.
158 See page 10.
159 See page 14.
160 See page 18.
161 ALL ER 53.
162 In terms of either the Mines and Works Act 27 of 1956, the Minerals Act 50 of 1991 or the MPRDA 28 of 2002.
21
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CASES
Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others 2008 (2) ALL SA
1 (SCA).
Cambridge Water Co Ltd.v Eastern Counties Leather Plc 1 ALL ER 53.
Cosmos (Pvt) Ltd v Phillipson 1968 (3) SA 121.
Gien v Gien 1979 (2) SA 1113 (T).
Holland v Scott (1882) 2 ECD 307.
Lascon Properties (Pty) Ltd v Wadeville Investment CO (Pty) Ltd and another 1997 JOL 1322
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Malherbe v Ceres Municipality 1951 (4) SA 510 (A).
Prinsloo v Shaw 1938 AD 570 575.
Rademeyer v Western Districts Council 1998 (3) SA 1011.
Regal v African Superslate (Pyt) Ltd 1963 (1) SA 102.
Starfield & Starfield v Randles Brothers & Hudson 1911 WLD 175.
23
LEGISLATION
Mineral and Petroleum Resources Development Act 28 of 2002.
Minerals Act 50 of 1991 Regulations.
Minerals Act 50 of 1991.
Mines and Works Act 12 of 1911.
Mines and Works Act 27 of 1956.
National Environment Management Act 107 of 1998.
24