Jagersfontein tailings dam collapse the ‘new Marikana’

The tailings dam collapse at Jagersfontein in the Free State on Sunday (11 September), which left one person dead and more than 300 homeless, has safety officers scurrying around the country and attorneys brushing up on class action law.

“We have been speaking to community members to get an understanding of what happened, and where the responsibilities lie,” says Richard Spoor – SA’s foremost class action lawyer who has fought on behalf of miners afflicted by asbestosis and black lung disease, and also brought a case against Tiger Brands over its deadly listeriosis outbreak in 2017.

“I would definitely look at a class action suit,” says Spoor.

“Here you have a large number of people affected, all suffered considerable damages, and there are legal complexities which make it impractical for people to sue as individuals.

“This is a perfect class action case. There are major legal issues over ownership and where responsibility for the tragedy lies.”

Disasters Charters tweeted the following map on Wednesday:

The Jagersfontein tailings dam collapse, though far less tragic in terms of lives lost, is being compared to the Marikana disaster in terms of its likely impact on mining and surrounding communities.

The massacre of 34 miners at Lonmin-owned Marikana mine in North West province in 2012 prompted a judicial inquiry and much soul-searching by employers seeking to avoid any repeat of an incident that brought international shame to SA.

Jagersfontein may be the touchstone that ignites a thorough overhaul of safety and environmental standards in mining, with the focus shifting to the regulators.

Liability

At an on-site inspection in Jagersfontein this week, Minister of Mineral Resources and Energy Gwede Mantashe blamed a 2009 high court judgment that apparently stripped his department of jurisdiction over tailings dams.

That ruling, De Beers v Ataqua Mining, where De Beers sought to prevent Ataqua Mining from prospecting on or removing materials from the Jagersfontein tailings dam, went the way of De Beers.

Part of that judgment ruled that the Mineral and Petroleum Resources Development Act (MPRDA) did not apply to the tailings dam – which is what Mantashe was referring to.

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Lawyers contacted by Moneyweb point out that buck passing will be the order of the day now that liability claims are starting to mount, and not everyone agrees that the Department of Minerals and Energy (DMRE) is off the hook for the Jagersfontein case.

“It looks like a classic case of passing the proverbial buck,” says Peter Leon, partner at law firm Herbert Smith Freehills.

“Strictly speaking, old tailings dumps do not fall under the DMRE’s jurisdiction as they are not regulated under the MPRDA [Mineral and Petroleum Resources Development Act]. Having said that, it looks as though the Mine Health and Safety Inspectorate were missing in action.”

Similar disasters

Ernst Muller, a senior associate at Herbert Smith Freehills focused on ESG (environmental, social and governance) and mining, points to similarities with the Brumadinho and Mariana dam disasters in Brazil, which left some 280 and 19 people dead respectively, with thousands more injured and left homeless.

These disasters prompted mining companies around the world to assess the structural integrity of tailings dams and check compliance with ESG standards.

In July, 200 000 Brazilian victims of that country’s worst environmental disaster won the right to have their case heard in a UK court against the owner of the tailings dam, mining company BHP.

The size of the claim is expected to be about $6 billion (R105 billion), according to The Guardian. The claim is that BHP ignored safety warnings by repeatedly raising the height of the dam and disregarding cracks in the dam wall.

“Complying with the letter of the law may not be sufficient in a case like Jagersfontein,” says Muller.

“You have to be seen to be complying with the spirit of the law, as Rio Tinto found out to its cost in the destruction of the Juukan Gorge in Australia,” he adds, referring to another case of environmental damage caused by a mining company.

Mantashe set to be challenged

Mantashe’s disavowal of responsibility for any blame in the Jagersfontein disaster is likely to face challenges on several fronts.

The Jagersfontein tailings dam is situated alongside the Jagersfontein diamond mine, formerly owned by De Beers and shuttered in the 1970s. It is now owned by Jagersfontein Developments, which is part of the Dubai-based Stargems Group. Jagersfontein was one of two diamond operations purchased from Johann Rupert’s Reinet Investments in April this year.

Jagersfontein Developments’ legal compliance officer Marius de Villers reportedly told the media on Tuesday that the company would accept liability for the break in the dam wall, adding that pictures from three or four days before the accident showed no sign of risk.

That assessment is contradicted by correspondence from government departments (which is the subject of a follow-up story), while residents in the area have reportedly raised concerns about the dam’s safety for years.

The question of liability will likely be played in the courts for years to come.

“Exploiting tailings is not mining as defined by the MPRDA, but it is defined as mining under the Mine Health and Safety Act,” says Spoor. Several government departments could be implicated, from DMRE to Water Affairs and Labour. And that’s not counting the liability of the company owner and even previous owners such as De Beers.

“There are questions as to whether De Beers is still the owner of the dam, and whether the new owners had merely acquired the rights to exploit the tailings, but not the actual dam,” adds Spoor.

“Then there’s the question of who is responsible for rehabilitation. Mantashe seemed to imply this week that De Beers owned the property, so there are a bunch of issues which have to be worked through.”

Minerals Council

The Minerals Council SA sent a senior technical team to the site of the disaster on Monday to assess the damage and establish what the industry could do to assist families and the affected communities.

“Based on our assessment of the situation, we believe urgent steps must be implemented to provide emergency assistance, including contributing funds to provide food aid and shelter, to assist in the clean-up, and [to] contribute to some rebuilding for those affected by the disaster,” says Nolitha Fakude, president of the Minerals Council.

The council says it has set a target of R50 million for the Jagersfontein Relief Fund and has requested contributions from its member companies and associations.

It has also set aside R20 million to assist families affected by the tragedy.

This article first appeared on Moneyweb by Ciaran Ryan, and has been republished with permission. Read the original article here.