The collapse of a tailings storage facility in Jagersfontein in the Free State that killed one person and left more than 300 homeless on Sunday (September 11) has security officials criss-crossing the country and lawyers clarifying class action law.
“We’ve been talking to members of the community to understand what happened and where the responsibility lies,” says Richard Spoor, SA’s lead class action lawyer, who fought on behalf of miners affected by asbestosis and lung disease and brought the case against Tiger Brands in connection with a deadly listeriosis outbreak in 2017.
“I would definitely look at a class action,” says Spurr.
“Here you have a large number of people who have been affected, all suffering significant harm, and there are legal complexities that make it impractical for people to sue as individuals.
“This is the perfect class action lawsuit. There are serious legal issues about ownership and responsibility for the tragedy.”
Disasters Charters released the following map on Wednesday:
Our first map of the Jagersfontein dam collapse #South Africa now available: https://t.co/RauCEz95DG
The card uses # Pleiades pictures to estimate the flood area. The levee breach is visible to the upper left of the flood zone highlighted in red. pic.twitter.com/S1iemJZwIz
— Disasters Chart (@DisastersChart) September 14, 2022
The Jagersfontein tailings collapse, although less tragic in terms of loss of life, has been compared to the Marikana disaster in terms of the likely impact on mining and surrounding communities.
The 2012 massacre of 34 miners at the Lonmin-owned Marikana mine in North West Province sparked a judicial inquiry and prolonged introspection by employers seeking to avoid a repeat of the incident that brought SA into international shame.
Jagersfontein could be a touchstone that ignites a major review of safety and environmental standards in the mining industry, with a shift in focus to regulators.
During an on-site inspection in Jagersfontein this week, Mineral Resources and Energy Minister Gwedd Montashe blamed a 2009 High Court ruling that apparently stripped his department of tailings jurisdiction.
This decision in De Beers v Ataqua Mining, where De Beers sought to prevent Ataqua Mining from prospecting or removing material from the Jagersfontein tailings dam, went in favor of De Beers.
Part of that decision ruled that the Mineral and Petroleum Resources Development Act (MPRDA) did not apply to the tailings storage dam – which is what Mantashi was referring to.
Lawyers contacted by Moneyweb say handing over the money 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 not involved in the Jagersfontein case.
“It looks like a classic case of us passing the buck,” says Peter Leon, a partner at law firm Herbert Smith Freehills.
“Strictly speaking, old brats do not come under the jurisdiction of DMRE as they are not regulated by MPRDA [Mineral and Petroleum Resources Development Act]. That being said, it appears that the Mine Health and Safety Inspectorate is missing in action.”
Ernst Müller, senior ESG (environmental, social and governance) and mining associate at Herbert Smith Freehills, points to similarities with the Brumadinho and Mariano dam disasters in Brazil, which killed 280 and 19 people respectively, with thousands more were injured. and remained homeless.
These disasters have prompted mining companies around the world to evaluate the structural integrity of tailings dams and verify compliance with ESG standards.
In July, 200,000 Brazilians affected by the country’s worst environmental disaster won the right to have their case heard in a UK court against the owner of the tailings dam, the mining company BHP. The lawsuit is expected to be worth around $6 billion (105 billion rand), The Guardian reported. The claim is that BHP ignored safety warnings by repeatedly raising the height of the dam and ignoring cracks in the dam wall.
“Following the letter of the law may not be enough in a case like Jagersfontein,” says Müller.
“You have to be seen to follow the spirit of the law, as Rio Tinto learned to its cost in the Yuukan Gorge disaster in Australia,” he adds, referring to another case of environmental damage caused by a mining company. .
Mantasha is waiting for a challenge
Montashe’s denial of any blame for the Jagersfontein disaster is likely to run into trouble on several fronts.
The Jagersfontein tailings dam is located next to the Jagersfontein diamond mine, which was formerly owned by De Beers and closed in the 1970s. It is now owned by Jagersfontein Developments, which is part of Dubai’s Stargems Group. Jagersfontein was one of two diamond operations acquired from Johan Rupert’s Reinet Investments in April this year.
On Tuesday, Jagersfontein Developments compliance officer Marius de Villers reportedly told the media that the company would take responsibility for the breach of the dam wall, adding that pictures from three to four days before the accident showed no signs of risk.
This assessment contradicts correspondence from government departments (which is the subject of a subsequent story), while residents of the area have reportedly expressed concerns about the safety of the dam for years.
The question of liability is likely to be litigated in the courts for years.
“Tails mining is not mining as defined in the MPRDA, but is defined as mining under the Health and Safety Act,” says Spurr. Several government departments may be involved, from DMRE to water and labour. And that’s not counting the liability of the company’s owner and even previous owners like De Beers.
“There are questions as to whether De Beers still owns the dam and whether the new owners have simply acquired the rights to operate the tailings but not the dam itself,” adds Spurr.
“Then the question arises as to who will be responsible for rehabilitation. Mantashi seems to have hinted this week that the property is owned by De Beers, so there are a lot of issues to be resolved.’
Board of Minerals
The Minerals Council of SA sent a senior technical team to the disaster site on Monday to assess the damage and determine what the industry can do to help the families and communities affected.
“Based on our assessment of the situation, we believe it is necessary to take urgent measures to provide emergency assistance, including the contribution of funds to provide food aid and shelter, to assist in cleaning and [to] contribute to recovery for those affected by the disaster,” says Nolita Fakude, president of the Minerals Council.
The council says it has set a target of 50 million rand for the Jagersfontein Relief Fund and has sought contributions from member companies and associations.
He also released 20 million rand to help families affected by the tragedy.
Listen to Fifi Peters and mining and labor analyst Mamokgeti Malapyane discuss whether mining companies and government have done enough introspection since the Marikana tragedy (or read the transcript here):