Complexities with extractive industries regulation on the African continent: What has ‘best practice’ legislation delivered in South Africa?

Abstract

The legal framework for mine closure and rehabilitation of new and former mine sites in South Africa, including legacy abandoned sites, is comprehensive. This paper discusses legislative provisions for mine site rehabilitation and closure in South Africa with reference to established international expectations. Overall, while the South African legislative framework for mine closure and rehabilitation generally conforms with international expectations for best practice, the system is extremely complex and unwieldy. Many individual laws, regulations, and guidelines and their corresponding ministries applicable to mine closure planning and management in South Africa has created a complicated interconnected raft of provisions and expectations. It is an open question whether the most recent amendments (December 2014), have untangled or rather added to the complexities. This historical complexity along with identified governance capacity constraints (financial, technical and experience based) likely explains why implementation of the legislative framework has fallen short of mine closure expectations and mandates. As South Africa is a jurisdiction on the African continent with much experience in mining, there are many lessons that are applicable to emerging countries in the region who wish to attract the benefits of the extractives industries and minimize their potential negative consequences.

The state of mine closure in South Africa - what the numbers say

“…Following this, and since the first democratic elections in 1994, there has been significant legal reform, including to mining and environmental legislation. This is continuing, as detailed by Alberts et al (2017). The following is a summary of the current requirements to obtain a license and then close a mine, as is relevant to this paper.…”

“…The final application procedure for a closure certificate is complex, involves a number of different statutes and guidance documents (Alberts et al, 2017) and is currently being amended.…”

“…In terms of the MPRDA, the holder remains responsible for any environmental liability until a closure certificate has been obtained. However, recent requirements of NEMA introduce the concept of perpetual liability (Alberts et al, 2017), where responsibility is allocated to the mining company notwithstanding the issuing of a closure certificate by the Minister responsible for mineral resources. This highlights the strengthening of legislation to hold mining accountable for pollution impacts and the minimization of state liability; understandable given their experience of dealing with post-closure acid mine drainage decant from the Witwatersrand basins and combusting coal mines in Mpumalanga.…”

“…There are a number of concerns with the mine closure process as practiced in South Africa, and these have largely been laid at the door of government. Alberts et al (2017) stress that the legislation generally conforms to international best practice. However, the system is 'complex and unwieldy', involving various pieces of legislation and different government departments with overlapping requirements and different interpretations of the law.…”

“…Milaras, McKay, and Ahmed (2014, p.10) quote a professional working in mine closure in South Africa: for environmental pollution regardless of having been issued with a closure certificate. Industry argues that there is thus no incentive to obtain closure certificates (Alberts et al, 2017). An alternative to closing a mine when it is no longer profitable is on-selling, the transfer of mining rights to a lower cost producer.…”