A house that was swept away by water at Charlesville, Jagersfontein, 12 September 2022, after a mine dam burst. Photo: Nigel Sibanda/The Citizen
Issues of non-compliance at the Jagersfontein tailings dam in the Free State were resolved and operations above-board when it collapsed on 11 September.
This is what the Department of Water and Sanitation (DWS) reported in its portfolio committee presentation on Tuesday in a brief address of the disaster.
It was revealed the dam was not registered as a “dam with a safety risk”, and the company operating the mine, Jagersfontein Developments (JD), had been granted its last extension to dispose into the fine tailings storage facility (FTSF) in June 2022.
As per the DWS’s extension, JD was not authorised to dispose past September 2022, the very month when the dam collapsed.
Although the DWS said tailings dams with 100% saturation such as Jagersfontein are now classified as “dams with a safety risk”, this intervention was implemented too late.
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A directive was first issued by the DWS in August 2019 regarding the over-abstraction of water for operations. In the same month, JD was said to have been “unlawfully operating within a watercourse near the R704 without authorisation”.
The DWS said an action plan had been submitted.
But the following year, the mine was in hot water for “failure to conduct [an] internal audit report for compliance to the licence conditions”. This issue was resolved in September 2020.
In December that year, JD was disposing waste volumes above its limit of 771 200m³ per annum into the tailings dam. Again, a closure report was issued in May 2021.
Restrictions to JD’s operations were lifted based on an action plan submitted in June 2021, with the DWS bowing to monitor compliance.
The department said its May 2022 tailings disposal volumes were compliant.
So, why did the dam walls burst?
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The DWS said JD employed SRK Consulting, which reportedly approached the department for dam safety requirements. A classification of the FTSF was done in April, and was declared a category III dam, meaning a dam wall of 30m or higher.
The dam was also inspected in May and July this year by MVD Kalahari Consulting Civil and Structural Engineers and Town Planners.
But no approved professional person was appointed to conduct any dam safety evaluations when the dam burst.
As per the DWS’ dam safety evaluation (DSE) report standards, a professional engineer must compile said report, for consideration by the department. Any recommendations made by the engineer must be implemented, and progress reported to the DWS.
In the case of Jagersfontein, it appears none of these steps were followed in time.
Minister of Water and Sanitation Senzo Mchunu did concede that the DWS had “very little staff” when it came to some of the dams that had to be monitored.
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The department owns 323 state dams, and the mining industry owns an estimated 327, 15 of which are mine residue deposit dams. There is currently a backlog of 474 reports yet to be evaluated by the DWS.
Two the largest dams owned by the mining and industrial sector are in the Free State, and only one is listed as being compliant.
In the sector as a whole, the 20 largest dams within the sector have a compliance rate of just 30%.
Human rights attorney Richard Spoor has alleged that JD did not own the land on which it mined, and that it belonged to Kopanong municipality.
He explained the land was leased by the municipality to JD in January 2014 for 15 years.
This notarial lease would bring Kopanong municipality into the firing line, Spoor said.
This was confirmed by JD, which said it did not own or operate a mine, but a tailings reprocessing facility.
“The company is the owner of a portion of the land on which it operates, and the other portion
is owned by Kopanong municipality. The land on which the slimes dam is situated is owned by the
municipality.”
Spoor and his team are currently in the process of bringing legal action against JD and its stakeholders, representing the 200 families affected by the dam burst.
The Department of Forestry, Fisheries and the Environment estimated the impact of the spill to be around 65km. Water sources from the tailings dam in Jagersfontein to the Kalkfontein Dam are “heavily impacted”.
Waste as a result of the spill is classified as Type 3 waste.
Spoor said government has issued “about 40 directives” under the National Environmental Management Act (NEMA) against JD, requiring them to conduct basic activities such as environmental impact assessments, and securing the tailings dam to prevent further pollution.
By Spoor’s team’s estimates, the directives could cost JD billions.
JD elaborated on the directives, saying six directives have been issued to the company by the national
Department of Water and Sanitation, the Free State Department of Economic, Small Business,
Tourism and Environmental Affairs, and the South African Heritage Resources Agency.
“These directives contain approximately 40 instructions regarding mandatory actions, steps, and conduct
modes that must be followed by the company.”
There is palpable concern from Spoor about whether JD is capable of funding the directives and compensating the affected Jagersfontein residents.
So far, JD has made R20 million available “for affected people on the ground and the restoration of the town”.
JD said it also provided food parcels to the community, accommodation for displaced community members, bottled water, clothing donations, grazing areas for cattle, supplied a diesel generator to Charlesville, as well as a generator for the local hospital.
It also made “a monetary contribution” to the families of the two people that died in the disaster.
In addition, JD said it created jobs “by employing 328 members of the community to assist with clean-up operations”.
“Kopanong [municipality] said to us in a letter, ‘it would be unfortunate if you issued legal proceedings against us. Wait for us to conduct our own investigations and complete work for government, then in good time we’ll engage with you and the community’.
“This was so vague, they didn’t even give us a timeline,” Spoor said.
Spoor said he believed JD was “factually insolvent and reckless”, and warned that the company would be held liable.
“It’s weeks later and we have no idea what government has done. how is it possible it’s hush-hush? The mine is not disclosing anything and neither is government. What about the promise of 160 houses?
“From our client’s perspective, we have to take legal steps to protect their rights and interests. We can’t wait on the municipality. We have to look at who else can be held liable for this.”
He said if the focus on recovering damages was solely on JD, the prospects of financial compensation were slim.
Attempts were made to reach Kopanong municipality, but no response was received by the time of publication.
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