Environmental lawyers and activists who have been engaged in a fierce battle with a multibillion-rand phosphate mine have alleged that it flouted South African environmental laws in the construction of its mine.
Kropz Elandsfontein, in which Patrice Motsepe’s African Rainbow Capital is the largest shareholder, has Kropz PLC as its parent company, a United Kingdom mining company listed on London’s AIM stock exchange. Motsepe only began investing in the mine in 2016.
The mine has been accused of allegedly benefitting from a string of inconsistent regulatory decision-making by government officials.
Additionally, the department of mineral resources apparently used a 2013 repealed section of the Mineral and Petroleum Resources Development Act (MPRDA) when it approved Kropz’s environmental management plan in February 2015. The department also took six months when by law it should have taken 21 days to release documents to the West Coast Environmental Protection Association after it lodged an internal appeal against the Kropz mining right.
These delays apparently allowed Kropz to construct its mine before a decision on the appeal was handed down.
The One Environmental System
The technicality lies with the One Environmental System, which came into law on 8 December 2014. This system placed the environmental authority related to mining rights and water use licences in the hands of the mineral resources department and the department of water and sanitation.
The aim of the One Environmental System was the integration of the mining industry into the environmental management system applicable to other industries, and to streamline environmental and water assessment and authorisation processes.
However, within six months, the Centre for Environmental Rights (CER) was raising concerns about mining companies taking advantage of the “legislative uncertainty” that came with the system having “almost immediately” found ways to “attack and circumvent” their obligations under the One Environmental System.
“The Department of Mineral Resources (DMR) has so far either been completely unwilling to enforce the law or has interpreted it in such a way as to defeat the purposes of sound environmental management,” reads a CER press release from June 2015, which lists Kropz precursor Elandsfontein as a culprit.
The Kropz mining right was awarded in November 2014, a month before the One Environmental System was in place, but the mineral resources department approved its environmental management programme (EMPr) in February 2015, after the One Environmental System was in place.
The timing of this has come under scrutiny.
Kropz lodged two applications for environmental authorisation under the National Environmental Management Act (Nema) on 12 August 2014. The first was for its mining activity, the second for a power line.
The first was withdrawn on 3 February 2015, a few days after its mining licence was executed and the second was withdrawn a short while later, on 16 February.
Kropz maintains that its department-approved EMPr gives it environmental authorisation.
Several non-governmental organisations, environmental lawyers and even some government departments have disagreed.
Correspondence between the Western Cape department of environmental affairs and development planning’s director of development facilitation Gerhard Gerber and Kropz’s Martin Carstens from 2015 illustrates this.
Gerber clearly states that an approval in terms of the MPRDA does not constitute authorisation in terms of Nema.
Gerber said that the mineral resources and water departments were failing to “perform their legislative mandates”.
A legal opinion prepared for the CER on the awarding of Kropz’s mining right, drafted by Coriaan de Villiers, states that the Kropz mining right application was granted before the One Environmental System was instituted and that, because of this, it should be dealt with under the old Nema regulations.
The legal opinion states that the approval of Kropz’s EMPr was unlawful and that the departments had acted in terms of a part of the MPRDA that was repealed in June 2013.
A judgment from a preliminary Water Tribunal hearing, which heard a challenge to Kropz’s water use license by the West Coast Environmental Protection Association (WCEPA) in 2017, has reinforced the position that Kropz should have had environmental authorisation under Nema before it began work.
Tumai Murombo, a member of the Water Tribunal and a law professor at the University of the Witwatersrand, handed down judgment in the matter in November 2017.
In the judgment, Murombo writes that Kropz “are under a legal obligation in terms of section 28 of Nema to take reasonable measures to prevent environmental degradation that is caused by their activities on the property concerned.
“It is noted that Kropz is refusing to apply for an environmental authorisation, a matter subject to separate proceedings,” he wrote.
The mineral resources department told New Frame that Kropz’s EMPr was a pending application when the One Environmental System came into effect on 8 December 2014, hence it was finalised and approved in terms of the MPRDA.
“The DMR was guided by Transitional Arrangements in terms of the National Environmental Management Act when these two systems were integrated,” it said. “All activities which are currently taking place on site were approved through the EMPr.
“The Department of Mineral Resources understands its responsibilities towards protecting the Environment, it can never condone unlawful activities,” it said.
Kropz chief executive Ian Harebottle said the company’s mining right and EMPr were still pending on the date on which the One Environmental System came into force and effect, and the transitional provisions set out in Regulation 54 of the 2014 Nema environmental impact assessment (EIA) regulations applied.
“Any uncertainties that still existed were clarified in 2017,” said Harebottle. “On 7 April 2017 the Department of Environmental Affairs published in Government Gazette 40772 under Notice 326 the amendments to the 2014 EIA Regulations.
“Regulation 54A now provides for transitional provisions to the extent that where an EA (EMPr) was required for mining prior to 8 December 2014, and such EA has been obtained in terms of the MPRDA, and such EA began after 8 December 2014, that such EA is regarded as fulfilling the requirements of the Nema.”
Kropz’s mining licence appealed
On 27 March 2015, then WCEPA chairperson Carika van Zyl lodged an internal appeal with the mineral resources department over the granting of Kropz’s mining licence.
By law, the department should have responded to the WCEPA’s appeal within 21 working days, but it took the department six months.
On 7 October 2015, the department finally released documents from the record of the granting of the mining right.
In correspondence dated 6 October, Western Cape department manager Duduzile Kunene says in response to queries about why Kropz had not applied for environmental authorisation, that Kropz had “already addressed most of the issues under Nema”.
New Frame has seen the WCEPA’s commentary to the department about the Kropz mining right being granted and, in it, Van Zyl says the “blatant level on non-compliance executed in this mining right by the DMR” was “disturbing”.
Van Zyl goes on to say that the mining rights were granted before the Mine Environmental Record of Decision (Mem Rod) – a department document detailing the evaluation of the EIA and EMPr – had even been received, before the matter could be discussed by the Regional Mining Development and Environmental Committee – an internal department committee – and without environmental authorisation, calling the granting of the mining right a “flawed process”.
Van Zyl states that the delay in responding to the WCEPA’s appeal was “unreasonable” and a “gross violation of an appellant’s right to just administrative action” because it allowed Kropz to commence mining.
The source familiar with the mineral resource department’s licensing processes agrees that the time taken to deal with the objections and appeals against the Kropz mining right were “unacceptable and administratively unjust”.
The department said it had followed all processes as determined by the MPRDA.
Harebottle said that Kropz, too, “regretted the delay” of the internal appeal as it “negatively affected Kropz and presented a major risk for the investment decisions of individual investors and banks”.
“We cannot comment on behalf of the DMR,” said Harebottle. “However, Kropz is meticulous insofar as its environmental compliance and ‘green’ mining work methods are concerned, and has invested millions in this regard.
“Kropz will disprove any reckless allegation regarding non-compliance,” he added.
In May 2019, the Department of Mineral Resources became the Department of Mineral Resources and Energy, and the Department of Water and Sanitation became the Department of Human Settlements, Water and Sanitation.