Summary

On September 24, 2016, everything changed for two families in Ermelo, a town in Mpumalanga province, eastern South Africa, in the heart of South Africa’s coal country. It was the day 17-year-old Xolani Mthembu and his 14-year-old friend, Sifiso Yende, drowned in an abandoned coal mine in Wesselton on the northern outskirts of Ermelo. The mine was last owned by Imbabala Coal (Pty) Ltd. The company had ceased operating the mine five years earlier when the Department of Mineral Resources and Energy (DMRE) found it did not have the requisite license for water use. Subsequently, the abandoned mine filled with rainwater in which the two teenagers drowned.

Following the drownings, an official from the Msukaligwa Local Municipality, one of the municipal authorities in Ermelo, promised that the government would ensure access was restricted and erect warning signs at the mine site. Five years later, when Human Rights Watch went to visit, the site was still completely accessible with no fence, restrictions on access, or warning signs. Thomas Mthembu, Xolani’s uncle, described to Human Rights Watch the ongoing risks such abandoned mines pose to residents of the community:

“What we ask ourselves is whether this is how things should be… that mine wasn’t rehabilitated and there isn’t even a warning sign, so the children saw [it as] a swimming pool. The worst part is that my nephew [will not be] the last one. There are still children that will go there.” 

Xolani and Sifiso's drownings underscore both the risks of accidents from unfettered access to unrehabilitated mines and the South African government’s failure to address these risks.

Across South Africa, according to government records, there are no fewer than 400 abandoned coal mines like the one in Wesselton, Ermelo where the boys drowned. In addition to accident risks, abandoned and unsecured mines leave behind a toxic legacy of polluted land and highly-acidic water that can harm local communities in a myriad of ways.

Residual coal deposits in Mpumalanga are also accessed by artisanal miners, known as zama zamas [an isiZulu term meaning “to try and try again”]. Artisanal miners may eke out a living, but at high risk: they have little protective equipment and enjoy no labour or health and safety protections while working in dangerous underground mine shafts.

Artisanal miners Human Rights Watch interviewed said there are more deaths than is publicly acknowledged in official records or published in the local media. Because artisanal miners are working illegally, most of their deaths are never recorded by law enforcement and police often do not investigate. An independent analysis by an investigative journalist of South African English-language media coverage between 2012 and 2015 found reports of 312 deaths, at least 150 because of collapsing tunnels, gas poisoning, suffocation, and explosives accidents.

The risks from unrehabilitated mines extend far beyond the people who access the sites – they risk polluting the water of millions of South Africans. Coal across South Africa is found predominantly in ores with sulfur-bearing minerals. When these ores come into contact with water and air, sulfuric acid is created, which can lead to further leaching of heavy metals from ores. This reaction poses significant risks to water and agricultural land in many parts of South Africa, including in Mpumalanga. Acid mine drainage (AMD), if left untreated, can have devastating impacts: it can render water unusable, soils unproductive, and even corrode municipal infrastructure for water delivery. Management of AMD is a complex, technical, and expensive process, but one that is part of proper operational management of a mine, both during and after its operation. In South Africa, the lack of both proper rehabilitation of mines and enforcement of regulatory requirements increases concerns about AMD. The central government does not provide basic data on surface water or groundwater quality that would allow it or others to identify and quantify risks of AMD to human health, and thereby meet obligations under the right to health to protect against harm. With respect to the right to water, there are domestic legal obligations to ensure that potable water is available, yet neither the national nor local governments have taken effective steps to address the risk that AMD is impacting water quality. 

In at least one case, the national government has been slow to react even when aware of the risks from AMD. In 2012, the High Court of South Africa directed the Albert Luthuli Local Municipality, one of Mpumalanga’s 17 municipalities, to take action to tackle a water crisis in the town of Carolina. In Carolina, municipal infrastructure had become severely corroded from AMD and left water in the town unsafe for human consumption. Residents who spoke to Human Rights Watch in 2021 pointed out that little had changed following the 2012 judgement. Residents complained of upset stomachs and other health problems, which they believe is due to, and is consistent with consumption of, contaminated water.

Residents described other risks from unrehabilitated mines, including the spontaneous combustion of exposed coal seams that can cause injury and further air pollution, and structures built over abandoned coal mines sinking and subsiding.

Based on a review of documents and data from the South African government, reports from Parliamentary meetings, research by South African NGOs, academic papers, and interviews with 34 community members living in the vicinity of abandoned mines or working as artisanal miners, in particular in and around Ermelo, this report describes the human rights risks posed by unrehabilitated coal mines in South Africa’s Mpumalanga province.

So far, the South African government has not taken adequate steps to ensure coal mining companies rehabilitate mine sites despite the Minerals and Petroleum Resources Development Act (MPRDA) requiring companies to do so. Improper assessments of future cleanup costs by the Department of Mineral Resources and Energy (DMRE) and a systemic lack of enforcement have left residents of communities across the country – not coal companies – bearing the cost of coal extraction. Underscoring the lack of enforcement, 103 mines were operating without the required water use licenses as of July 2014. Water use licenses are essential because they are the main mechanism used by the Department of Water and Sanitation (DWS) to assess and mitigate, including through rehabilitation, the impacts of an operation on water users and on surrounding water resources, including groundwater. Just six enforcement actions were taken on these 103 mine sites and no criminal prosecutions resulted. 

Future cleanup costs required to be set aside by companies rarely cover actual costs of rehabilitation and are rarely updated annually despite a legislated requirement to do so. For example, as part of the 2005 mining authorization for its Ermelo coal mine, Imbabala Coal (Pty) submitted a financial provision of just R600,000 (approximately US$92,000) to cover the costs of rehabilitation. Following a 2019 community-led campaign to address the legacy of the unrehabilitated coal mine that ceased operations in 2011, DMRE assessed the cost of remediation at R450 million (US$31 million), 750 times the amount DMRE had received 14 years earlier as security.

The national government’s lack of action in tackling the many unrehabilitated coal mines and other coal infrastructure in Mpumalanga and other locations across South Africa poses risks for the residents of those communities. Of the 445 closure certificates – which indicate rehabilitation has been completed to government satisfaction – issued country-wide between 2011 and 2016, only six were in Mpumalanga. None of the six were for coal mines, despite Mpumalanga having nearly 800 abandoned mines as of 2019 (and 235 active coal mines). Potentially toxic tailings, essentially waste rock from mining, are often found near the abandoned mines. Mining sites are often easily accessed by residents and are deep and dangerous and often filled with water. The central government has done little to ensure sites are secured, let alone cleaned up.

Prior to 2002, before parliament passed the MPRDA, there did not exist a legal requirement to clean up mines in South Africa. Since then, weak enforcement of the legislation has meant, in practice, few steps have been taken to rehabilitate mines. Costs of proper mine rehabilitation are usually significant, sometimes tens of millions of US dollars, particularly in locations that are acid-bearing. The need to clean up a mining site is most evident after the mining companies have exhausted almost all the easily-extracted ore, and so there is little financial incentive for companies to incur what they consider an additional cost, especially because legislation requiring clean ups is rarely, if ever, enforced.

This needs to change. The government should ensure mines are rehabilitated to the level required by law and that the costs of the cleanup are borne by the mining company. By also ensuring that companies have to pay the real cost of coal extraction, rather than communities de facto subsidizing the cost, coal will become less appealing as an energy source versus cleaner and lower emitting sources of energy.

Mpumalanga residents described receiving no information from local, provincial, or national governments about the risks posed by unrehabilitated mines. Residents did not have access to even basic information needed to understand the health risks including on water quality, extent of accidents, or the location of abandoned mines.

The 2000 Promotion of Access to Information Act (PAIA) has, on paper, improved information accessibility for civil society and others seeking better access to government information; in practice, however, information requests are subject to significant delays, with information received often incomplete or fragmented. Human Rights Watch filed four PAIA submissions asking for basic information related to water quality, abandoned mines, and deaths on unrehabilitated mine sites, none of which came back within the legislated time. Basic information that should be publicly available on government websites even without the need for PAIA submissions, such as water quality data or abandoned mine locations, was incomplete or missing with no explanation or justification.

Coal is one of the most widely used fossil fuels in the world today; it is also the most polluting. The use of coal as an energy source has significant health consequences for communities that live near coal mines and powerplants, as these coal developments release pollutants including particulate matter, sulfur dioxide, nitrous oxides, and heavy metals – all of which can contaminate communities’ air and water sources. At the global level, coal burning is a major factor contributing to the climate crisis, as it accounts for 20 percent of the world’s greenhouse gas emissions.

South Africa’s experiences with mine rehabilitation provide important lessons for other countries whose coal industries will progressively close as the world moves away from this dirty fuel source. There is growing debate in South Africa and internationally about how a “just transition” can ensure that as economies shift from one based on fossil fuels to cleaner forms of energy, fossil fuel workers are retrained, retooled, and ready for new jobs. This is important, but little to no attention is given to the physical mine sites themselves and the toxic legacy they leave behind. The risks described to Human Rights Watch by those who live adjacent to coal mines underscore exactly why this subject is pressing and should be included in any “just transition” discussions or government strategies.

While the focus of this report is on coal, its findings are broadly applicable to South Africa’s other mineral sectors and for the over 6,000 abandoned mines in South Africa. Now is the time to ensure the lessons learned from coal mining, especially those related to the need for the full range of costs from mining development to be borne by the mining industry and not the communities living next to the mines, are applied to future mining activities. Demand for minerals to fuel the transition to clean energy is predicted to increase exponentially, and South Africa is one of a number of countries with significant mineral resources needed in that transition, including nearly 80 percent of the world’s manganese ore deposits, a key metal in lithium-ion batteries.

South Africa’s constitution recognises the right to a healthy environment. Other human rights, including the right to health, are enshrined in regional and international treaties, including the African Charter on Human and People’s Rights and the International Covenant on Economic, Social and Cultural Rights. These rights mean little in practice to the local communities who face the lasting legacies of the government’s inaction. South Africa has an opportunity to change course by protecting the rights of people and communities living adjacent to old and unrehabilitated coal mines.

South Africa’s government should ensure that companies provide adequate financial security to DMRE for the full cost of coal mine rehabilitation before mining commences, that those funds are used to clean up mine sites after mining stops, and that companies which fail to do so are held to account. Authorities should develop and implement a comprehensive program of rehabilitation of abandoned mines. Recognizing the need to tackle the abandoned mine problem, the Minister of Minerals and Energy published a draft National Mine Closure Strategy in May 2021 and draft financial provisions for mine rehabilitation. Yet to be passed, these are important, albeit long overdue, initial steps toward addressing the legacy of unrehabilitated mines and ensuring the safety, socio-economic and environmental impacts of mine closures are managed in a more integrated way.

Recommendations

To the Department of Mineral Resources and Energy (DMRE)

• Ensure the rehabilitation of recently closed mines and develop and promptly implement a program for the rehabilitation of derelict and ownerless mines in line with regulatory requirements.
• Secure abandoned coal mines to prevent public access, including by restricting access through fencing and erecting warning signs at abandoned mine sites.
• Pursue and hold to account companies that fail to comply with DMRE’s section 28 directives under the National Environmental Management Act (NEMA) or other applicable legislation, including by imposing fines commensurate to the gravity of the consequences for individuals and communities of company non-compliance.
• Ensure that during the review and approval of mining permits the amounts companies are required to set aside are sufficient for the adequate rehabilitation of mines and that rehabilitation plans and funds set aside are updated annually as mine development evolves.
• Make companies’ rehabilitation plans, including financial provisions set aside as part of their mining authorization, available on DMRE’s website.

To the Department of Forestry, Fisheries and Environment

• Ensure periodic review and updates of financial provisions as mining operations evolve.

To the Minister of Forestry, Fisheries and Environment

• Finalise regulations on the financial provisions that mining companies should set aside and ensure provisions are adequate for mine rehabilitation and remediation of associated environmental and water degradation.

To the Department of Water and Sanitation

• Ensure that coal mining companies acquire water use licenses, the details of which should be publicly available and accessible, including their terms and conditions.
• Ensure the cumulative impacts of the coal industry on the water quality of catchment areas are monitored, are publicly available, remain compliant with national and international standards, and that the risks are clearly communicated to impacted communities.
• Improve water quality data and public access to it.

To the Government of South Africa

• As coal communities bear the socioeconomic brunt of mine closures, ensure the re-skilling and retraining of current or past coal industry workers so they can be employed in the rehabilitation of coal mines.
• Become the first African state to ratify the Aarhus Convention.

To Parliament’s Portfolio Committee on Mineral Resources and Energy

• Publicly release any reports related to derelict and ownerless mines, including from the Department of Mineral Resources and Energy’s and the Council of Geosciences’ Project on Ownerless and Derelict Mines and provide an update clarifying the project’s current status.

To Gert Sibande District Municipality

• Coordinate with the Department of Mineral Resources and Energy to ensure unrehabilitated mines within the municipal boundary have restricted access and warning signs.
• Provide support and assistance to the Msukaligwa Local Municipality in handling environmental complaints from community members.
• Provide support and assistance to the Albert Luthuli Local Municipality in providing water tankers (JoJo tanks) throughout the communities of Caro Park and Silobela and restoring access to clean, safe water through water infrastructure. 

To Albert Luthuli Local Municipality

• Fully implement the July 2012 judgement of the High Court of South Africa to provide potable water in line with national standards.
• Restore the provision of JoJo tanks throughout the communities of Caro Park and Silobela as a temporary measure while developing a comprehensive and time-bound plan to upgrade municipal infrastructure to a level sufficient to ensure safe drinking water.
• Provide regular, up-to-date information to residents on the water quality of both municipal-supplied water and boreholes, and communicate risks and strategies to mitigate those risks.

To All Companies with Valid Coal Mining Authorizations

• Remediate the environmental degradation and pollution caused by coal mines, including the treatment of mine-impacted water, to acceptable standards.
• Provide a rehabilitation guarantee by a registered bank or financial institution to cover the costs of rehabilitation, including post-cleanup monitoring.

 

Methodology

This report describes the human rights risks of unrehabilitated coal mines in South Africa. It is based on a review of documents and data from the South African government, reports from Parliamentary meetings, research by South African NGOs, academic papers, and interviews with 34 community members, artisanal miners, local NGO representatives, health workers, and local government officials. 

While many of the risks identified in this report apply to South Africa’s mining sector in general, this report focuses on coal mining because of the immediate and long-term potential for closures of significant numbers of coal mines in South Africa. It is also important in the context of a broader discussion – in South Africa and internationally – about the environmental and human rights dimensions of transitioning energy supplies away from fossil fuels.

Human Rights Watch interviewed community members in-person in Ermelo and Carolina for this report, compliant with all mandatory Covid-19 safety guidelines. In May 2021, Human Rights Watch interviewed eight residents of Carolina, two nurses from Carolina Hospital, and a nurse from Silobela Clinic in Carolina. Researchers also interviewed by phone representatives of nongovernmental organizations including the Association for Water and Rural Development, Lawyers for Human Rights, Centre for Environmental Rights, WoMin, and Federation for a Sustainable Environment on the issues of AMD and unrehabilitated mines in South Africa. Additional in-person interviews were conducted in Ermelo, Mpumalanga in September 2021 with artisanal miners.

Human Rights Watch chose to conduct research in Mpumalanga because the province is home to an overwhelming preponderance of coal mines and associated coal infrastructure in South Africa. Ermelo was chosen because it is emblematic of the challenges in Mpumalanga of managing coal mines long after companies have ceased operations and has a particularly active civil society who have been pressuring government to address the impacts of two unrehabilitated mines in the town, commonly known as Golfview and Imbabala. Carolina – which includes the Gert Sibdande District Municipality and the Albert Luthuli Local Municipality – was chosen because of the impact of AMD on the quality of the town’s water and because the lack of actions taken to implement a 2011 High Court decision are a striking example of the government’s inattention to the AMD issue.

Human Rights Watch wrote letters to DMRE, Eskom, Golfview Mining (Pty) Ltd, and Imbabala Coal (Pty) Ltd on October 30 and 31, 2021, November 12, 2021, and June 14, 2022 sharing the findings from our research and inviting them to respond to the issues raised in this report. No responses were received at the time of writing, and multiple efforts to contact Imbabala Coal (Pty) Ltd by email, phone, and mail between October 31, 2021 and June 23, 2022 were unsuccessful. Examples of these communications are included in the Annex.

 

Background

Coal Mining in South Africa

Coal is one of the most widely used fossil fuels in the world today; it is also the most polluting. The burning of coal, as well as gas and oil, for electricity is the single largest source of global greenhouse gas (GHG) emissions.[1] Coal-fired power stations account for 20 percent of the world’s greenhouse gas emissions. [2], [3]

South Africa is a signatory to the Paris Agreement and submitted its updated Nationally Determined Contribution (“NDC”) in September 2021.[4] The level of ambition in South Africa’s NDC is rated as “insufficient” by the Climate Action Tracker.[5]

South Africa is one of the top 20 countries in the world with the largest GHG emissions.[6] Around 80 percent of South Africa’s GHG emmissions come from its energy supply.[7] Seventy percent of South Africa’s electricity is generated from coal.[8]

Despite some recent indications from President Cyril Ramaphosa about moving toward cleaner energy, South Africa remains committed to coal.[9] According to the latest Integrated Resource Plan (“IRP”), South Africa’s plan for energy infrastructure development, coal “will continue to play a significant role in electricity generation in the foreseeable future” and will remain dominant in the energy mix up to 2030.[10],[11] Longer term, the government plans state that 35,000MW worth of coal-fired power plants will be decommissioned by 2050.[12]

Eskom, South Africa’s government-owned national electricity utility, is responsible for the generation, transmission, and distribution of 95 percent of all electricity to municipalities and end users and has 13 coal-fired power stations with a generation capacity of 37,698MW, using over 90 million tons of coal each year.[13] The majority of Eskom’s coal-fired power stations are located in the Mpumalanga province.[14]

South Africa’s coal deposits are one of the world’s largest.[15] The prevalence of coal mining and coal-fired power stations in the Mpumalanga province makes it the hub of coal development with significant impacts on local communities, including unsafe levels of air pollution, water, and soil pollution.[16]

Coal mining and coal-fired electricity generation require significant volumes of water.[17]  This is particularly problematic in a water-stressed country like South Africa, with water shortages likely to be exacerbated by climate change.[18] South Africa is particularly vulnerable to climate variability and change.[19] Climate modelling predicts that average rainfall in the country is expected to drop, which would further compound water concerns.[20]

In addition to industrial coal mining, artisanal miners play an important role in mining abandoned or unrehabilitated deposits, waste piles, and exposed coal seams. This work is an important source of employment in a country with unemployment rates over 35 percent.[21]

 

Findings

Risks from South Africa’s Abandoned Mines

South Africa has an estimated 6,100 mines designated as “derelict and ownerless” as of 2021, an increase from the 5,906 derelict and ownerless mines reported during a previous audit in 2009.[24] Companies that owned mines now designated as “derelict and ownerless” are those that failed to complete the required mine closure process.[25] The Department of Mineral Resources and Energy (DMRE), alongside the Department of Water and Sanitation, and the Department of Forestry, Fisheries, and Environment manages the health and environmental impacts of derelict and ownerless mines.[26]

The pace of government action on these mines is painfully slow. In 2007, the Director of Environmental Policy in DMRE estimated that, at the then rate of progress, it would take approximately 800 years for government to rehabilitate derelict and ownerless mines at an estimated cost of R100 billion (US$ 6.87 billion).[27] As of 2017, only 0.7 percent of these mines had been rehabilitated.[28]

Abandoned mines impact nearby communities in multiple ways. Highly acidic water laced with heavy metals can pollute surrounding ground and surface water used for household needs.[29] The significant surface area of mines results in loss of productive land and increased risks for communities, including illegal settlements, that are built over the top of mining tunnels or shafts.[30] This loss of productive land effectively continues in perpetuity far beyond the mine’s operations. There are high risks of accidents, such as injury and death, from open mine pits or shafts. For coal mines, spontaneous combustion of exposed coal seams pose additional risks.[31] Death of cattle and pollution of water used for irrigation also pose threats to livelihoods.[32]

Risk of Tunnel Collapses and Accidents

South Africa’s unrehabilitated mines are often located near densely populated communities that themselves grew rapidly because of the perceived opportunities that the mines presented.[33] Following the conclusion of mining operations, unrehabilitated sites are often left unfenced or poorly fenced, making it easy for individuals to access the mine site for recreation, artisanal mining, or for other reasons. While no data exists to precisely quantify the extent of unimpeded access at unrehabilitated mines, artisanal miners who spoke to Human Rights Watch described no restrictions on access to some former mines. A number of mines and waste piles seen by Human Rights Watch in Mpumalanga were unfenced, underscoring this ease of access.

The failure to secure abandoned mine sites places local residents, including children who have few other recreational facilities, at a greater risk of death and injury.[34] Deep shafts or open pits, some of which are easily accessible from the surface, can fill with rainwater over many months and years. Many mining shafts are at risk of collapse and are typically not designed to last indefinitely. Mpumalanga is at particular risk given the scale of mining, with nearly 800 abandoned mines and another 235 active coal mines that will likely be closed one day.[35]

The government’s failure to act on abandoned mines also enables artisanal miners to access mine sites, exposing them to risk of death and injury. Known as zama zamas in isiZulu, tens of thousands of artisanal miners in South Africa operate illegally without any mining authorizations that would require adherence to health, safety, and environmental standards. [36] For decades, it has essentially been an unregulated space, although first steps towards effective government regulation were taken in March 2022 with the publishing of a new policy on artisanal and small-scale mining that would formalize the industry.[37] For zama zamas, the dangers they face are not limited to the risk of collapsing mine shafts. Serious health risks, including death, can also arise from inhalation of gases that are present in coal mines, including carbon monoxide, hydrogen sulfide, or methane. These gases can also spontaneously ignite, posing serious risks.[38] The illicit nature of their work means accidents, injuries, or deaths are usually not reported, and family members often do not disclose the cause of death due to the stigma associated with illegal mining.

For example, in June 2021, the South African Police Services (SAPS) found 20 unidentified male bodies near abandoned mine shafts in Orkney and Stilfontein in the North West province.[39] SAPS stated that all the deceased were suspected to be illegal miners operating in obsolete shafts.[40]

The South African government does not keep an official record of the number of zama zamas that die either from collapsing shafts or from other causes. However, an independent analysis by an investigative journalist of English-language South African media coverage between 2012 and 2015 found reports of 312 deaths.[41] Of those deaths, at least 150 were because of collapsing tunnels, gas poisoning, suffocation, and explosives accidents.

Artisanal coal miner “Bongani” described to Human Rights Watch on September 3, 2021 the risks he faces while mining in Golfview, an abandoned mine in Mpumalanga:

“When I started at Golfview in 2015, there was always the challenge of fires, but it was still far [from where we mined]. What has always killed us is the gas. There are moments when there is no gas and we can work but when we start noticing the smell we run away and wait for a while until the gas has subsided, then go back into the shaft.”[42]  

Bongani also described the risk of tunnel collapse while mining in Imbabala:

“When we started mining, because everything underground was coal, our approach was to mine everything out, without thinking about the fact that the mine company that had been here had left pillars to keep the ground from caving in… we mined everything, and we would start closest to the exit and that’s what caused there to be a lot of deaths in Imbabala.”

Three zama zamas who had been mining coal in Golfview since 2011/2012 described similar risks from gas inhalation underground. One of them told Human Rights Watch:

“When you inhale it, you collapse because your joints, your whole body becomes weak – as if you’ve overdosed or you’re drunk on alcohol. The outcome of inhaling the gas is that you’ll die because it’s suffocating.”[43]

Restricting access to coal mines would impact the livelihoods of these informal workers. But if done with requisite foresight and planning, mine rehabilitation projects could provide significant numbers of jobs for those currently working as artisanal miners, including work related to ongoing maintenance and monitoring many years after active rehabilitation is completed, a position supported by the National Association of Artisanal Miners in September 2019.[44]

Acid Mine Drainage (AMD) Risks to Water

South Africa is facing a crisis from Acid Mine Drainage (AMD), according to the Council for Scientific and Industrial Research.[50] This crisis has contributed to the deterioration of water quality in streams, rivers, and lakes in the last 20 years and an estimated 60 percent of river ecosystems countrywide are threatened.[51] In South Africa, the mining industry and the absence of properly remediated mine sites is the major contributor to AMD.[52]

In Mpumalanga, academic studies have shown that surface water and groundwater quality deterioration generally results from contaminated runoff from mines and agricultural lands or from AMD.[53] AMD is a particular risk in Mpumalanga because its coal deposits are largely found in sulfide ores which, unless carefully managed during and after a mine’s operation, will pollute groundwater and surface water.[54] AMD occurs when sulfides in mine waste rock, tailings, or exposed mine shafts meet air and water and create sulfuric acid.[55] This leads to further leaching of heavy metals into waterbodies.[56] During mining, operators continuously pump out water from the mine shafts to ensure unimpeded access to orebodies, but after active mining operations, pumping usually stops and rainwater fills these shafts, creating highly acidic water which can leach into groundwater or overflow in surrounding lands.[57]  

Managing AMD is time-consuming, site-specific, technically complex, and usually expensive. It must be managed throughout the operation of a mine and for as long as there are exposed sulfide ores, there is a risk of acidification of water in contravention of water quality standards.[58] In practice, AMD management is typically required for decades, and well after a mine ceases operations.

AMD causes high acidity in water which can make it unfit for human consumption and can lead to high concentrations of a wide range of solutes that can adversely impact health outcomes.[59] The consumption of acidic water with high sulphate levels is likely to cause diarrhea and dehydration, with particularly devastating impacts on children.[60] High acidity in tap water risks corroding copper pipes, which can result in copper leaching into tap water, causing gastrointestinal, liver, and kidney problems when ingested by humans at high levels.[61] Long-term impacts on human health include liver damage or death.[62] AMD can also release contaminants from ore such as arsenic, cyanide, mercury, lead, and uranium.[63] Even at very low doses, research has demonstrated these chemicals to be very dangerous to humans, particularly for children, causing health problems including skin irritation, kidney damage, neurological conditions, and cancer.[64] Cumulative exposure to these substances can cause death.[65]

Increased water acidity risks degraded soil quality, destruction of biodiversity, and an inability to support aquatic life.[66]

AMD impacts the ability of communities to access safe water for household needs including drinking water, for livestock, and to irrigate crops.[67] This is particularly important for farming communities or communities living in informal settlements who rely on groundwater and/or dig boreholes as their primary water sources.[68] For communities with municipal water systems, there is a risk that overly acidic water corrodes pipes and other water infrastructure.

With thousands of abandoned mines in sulfur-bearing ore locations, there is a very high likelihood of increasing water acidification as more rain falls enter into unmanaged mine sites with exposed sulfide ores. Ensuring that operating mines are treating AMD during operations, including regular decanting where appropriate, and ensuring that mines are rehabilitated in line with regulatory requirements is an important way to minimize future AMD problems.[69]

In any degraded waterbody there may be multiple contributions to the cumulative degradation of water quality, making it more difficult to apportion responsibility to individual actors, underscoring the importance of addressing AMD at source. Once waterbodies are heavily contaminated with acidic water from multiple sources, managing AMD becomes even more complex and expensive given the difficulty of apportioning individual contributions to water quality.

The impacts of AMD on South Africa’s water will be exacerbated by ongoing pressures on South Africa’s water supplies. According to World Bank near-term projections, even without any impacts from a deteriorating global climate from increased atmospheric greenhouse gas concentrations, the country will face water shortages as it uses its existing water resources.[83] Projections that account for modelled climate change impacts under a high emissions scenario are that the average annual precipitation of 456mm is likely to decrease by about 1.6mm between 2020 and 2039 and 3.7mm between 2040 to 2059.[84], [85] In addition to lower annual precipitation levels, climate change will increase the country’s rainfall variability, and the increase in average temperatures will make the country hotter and drier with increased likelihood and intensity of extreme weather events.[86]

Government’s Failure to Ensure Proper Mine Closure

The 2002 Mineral and Petroleum Resources Development Act (MPRDA) requires mining companies to “rehabilitate the environment affected by the prospecting or mining operations to its natural or predetermined state or to a land use which conforms to the generally accepted principle of sustainable development.”[87] It also requires mining companies to set aside a financial provision adequate to cover costs of rehabilitation and to revise this amount annually.[88]

Government enforcement of these requirements has been grossly inadequate, making it easier for companies to evade cleanup responsibilities. A 2016 South African Human Rights Commission report concluded there is a “failure to monitor compliance, poor enforcement, and a severe lack of coordination.”[89] Centre for Environmental Rights (CER), an NGO that advocates and litigates for environmental justice in South Africa, reported that DMRE “either ignores complaints of violations by mining companies or refuses to get involved in any enforcement action, despite reports of non-compliance.” CER reports, based on a series of information requests under the Promotion of Access to Information Act (PAIA), that despite having 235 registered mines, Mpumalanga’s regional office has just ten Environmental Mineral Resource Inspectors (EMRI) as of March 2019.[90] EMRIs undertake environmental compliance monitoring and enforcement.

Things aren’t much better at the Department of Water and Sanitation, which is responsible for issuance of, and compliance with, water licenses. In July 2014, 103 mines in South Africa were operating without water use licenses, yet the Department of Water and Sanitation (DWS) brought only 12 enforcement actions and there were no convictions from the six actions that led to criminal prosecutions.[91]

DMRE’s enforcement capacities may also be constrained by its potentially contradictory mandates of promoting South African mining development while simultaneously ensuring compliance with environmental requirements.

The lack of enforcement means that mining companies can, in practice, easily disregard the law with no consequences on their ability to operate, including on issues around mine closure requirements. Lack of both enforcement action and costs for noncompliance provide little incentive to comply with many permit conditions or to undertake remediation that would enable an application for a closure certificate.

Human Rights Watch reviewed data on the mine closure certificates granted by DMRE between 2011 and 2016, acquired through a 2015 information request by an investigative journalist. Closure certificates can be granted upon completion of rehabilitation in line with government requirements. Of 445 closure certificates issued country-wide, only six were in Mpumalanga, none of which were for coal mines.[92]

Once a mine is abandoned, it is unlikely to be cleaned up, although there are legal mechanisms to try to ensure clean-up will happen.[93] A scathing 2022 report on abandoned mines from South Africa’s Auditor General found that just 27 mines, all asbestos, out of 2,322 “high-risk commodity mines,” including coal, had not been rehabilitated between 2009 and 2021. It also found that the average number of mines rehabilitated in a year, even though it had increased from 1.67 mines in 2009 to 2.25 mines in 2021, was so negligible that it barely makes a dent in the thousands of unrehabilitated mines.[94]

Globally, many international mining and/or energy companies are divesting from coal, recognizing diminished future demand for coal, the risk of coal mines becoming stranded assets, and, in some cases, the reputational risks of holding coal assets.[95] In South Africa, some international companies have sold off coal assets to smaller South African-owned mining companies.[96] Closure liabilities are transferred to the small companies.[97] These sales are sometimes framed as contributing to the empowerment of local South African companies to share in the nation’s mineral wealth.[98] Divesting from coal mines before rehabilitation could also enable international companies to boost sustainability credentials while avoiding costly environmental clean-up obligations.

Many of these mines are sold to smaller companies as the most lucrative deposits are depleted and the mine nears the end of its life, with limited future revenue streams.[99] The lack of long-term revenue potential makes it even more difficult to justify in an economic sense – an expensive rehabilitation in line with government standards. Smaller mining companies also generally lack the experience and expertise required to properly rehabilitate the mine.[100]

Despite the clear lack of progress in rehabilitating mines, nearly R60 billion ($3.9 billion) was being held in May 2017 for mining rehabilitation by DMRE, but not being used because of regulatory constraints.[101] For example, these funds can only be used for rehabilitation once a mine has initiated a closure process or the DMRE has declared the mine abandoned. In practice, neither of these things happen very frequently.[102] Very few mines are designated abandoned, in part because there are no known criteria to guide DMRE in assessing whether mines should be classified as abandoned, as it is plausible that mines that cease operations but have not applied for a closure certificate could restart at some point in the future.[103]

Inadequate Financial Provisions

The amounts companies are required to set aside with DMRE for rehabilitation at the time mining authorizations are granted are sometimes far below the actual cost of remediation, which can be tens of millions of dollars.[104] According to the South African Human Rights Commission (SAHRC), one of the reasons financial provisions held for cleanups are so inadequate is that the government does not have any prescriptive standards to calculate financial liability, leaving mining companies to calculate their own closure costs. One of the consequences of not having a standardised approach is that the “quantum for proper closure is grossly underestimated.”[105] In addition, the government rarely enforces the requirement that ensures the company annually reviews closure needs as mining operations evolve and shift as they naturally do over time and to account for inflation.[106] All of this can provide incentives to companies to submit financial provisions that are “grossly underestimated.”[107]

The history of Imbabala Coal (Pty) Ltd, which owned Imbabala coal mine in Ermelo, illustrates the problems of inadequate funds being set aside for rehabilitation. As part of its application for a mining authorization for its Ermelo coal mine, Imbabala Coal (Pty) Ltd submitted a financial provision of just R600,000 (approximately $92,000) in 2005 to cover costs of rehabilitation. This amount was never increased as the mine was further developed, despite a requirement to revisit estimated cleanup costs annually.[108] Following a 2019 community-led campaign to address the legacy of Imbabala’s unrehabilitated coal mine, DMRE assessed the cost of remediation at R450 million (S$31 million), 750 times the amount DMRE had received 14 years earlier as a security.[109]

Due to a failure to submit required annual reports to the Companies and Intellectual Properties Commission (CIPC), Imbabala Coal (Pty) Ltd was deregistered in 2018.[110] It is not clear if DMRE was aware of this deregistration prior to issuing its 2019 directive. At the time of writing, DMRE has provided no response to our correspondence requesting information on the steps taken to ensure compliance. Human Rights Watch wrote to Imbabala on October 31, 2021 and June 14, 2022 and received no response at the time of writing.

For Ermelo’s Golfview mine there is no evidence the company provided any financial provision to DMRE whatsoever, nor that the company took any steps to rehabilitate the environmental degradation caused by its operations.[111] In 2015, Golfview Mining (Pty) Ltd began business rescue proceedings.[112] In Golfview’s September 2015 Business Rescue Plan, its environmental liability was an estimated R29 million ($2 million), but the rehabilitation reserve Anker Coal and Mineral Holdings South Africa had set aside in a trust amounted to just R4.2 million ($286 587).[113] Human Rights Watch wrote to Golfview on November 12, 2021 and June 14, 2022 and received no response at the time of writing.

Government’s Response

Recognising the need to tackle the abandoned mine problem, the Minister of Minerals and Energy published the draft of the National Mine Closure Strategy in May 2021.[114] It marked an important step toward ensuring the safety and the socio-economic and environmental impacts of mine closures are managed in a more integrated way and that mine closures are no longer dealt with in a manner divorced from their cumulative impacts on communities. However, civil society organizations have expressed concern regarding “the implementation and enforcement… given the track record of implementation of previous mine closure strategies.” This concern stems from the fact that the draft National Mine Closure Strategy continues to take a reactive approach to the mine closure process.[115]

In addition to the strategy, on August 27, 2021, the government published draft regulations on financial provisions for mine rehabilitation for public comment.[116] The regulations are aimed at ensuring the state “does not become liable for the costs of mitigation rehabilitation and management of negative environmental impacts and environmental damage” and to ensure that mining rights holders and applicants fulfil their obligation “to mitigate and rehabilitate environmental damage caused by the entire life cycle of the mining process.”[117]

The draft does not require government consent before a mining right is transferred or ceded from one entity to another.[118] The effect of this is that there would continue to be no government assessment of whether the entity in whose favor the transfer or cession is occurring is capable of carrying out the obligations, including mine rehabilitation.[119]

South African civil society organizations have correctly underscored the importance of independent specialists in determining the financial provisions set aside and that these provisions be reviewed over time to ensure the provisions set aside are adequate. This is critical because of the significant time lapse between when the financial provision is determined and when the mine closure process is initiated, given that mine development will most likely have changed since the time authorization was applied for and inflation is not considered.[120]

Human Rights Watch wrote to the Department of Mineral Resources and Energy on October 30, 2021 asking for a response to the findings of this report, including clarification on timelines related to the draft regulations on financial provisions and the draft mine closure policy. No response was received at time of writing. This correspondence can be found in the Annex.

Access to Information

Basic information about water quality or abandoned mines is not publicly available or is badly outdated. This leaves communities, including those in Mpumalanga, ill-equipped to understand risk or to ask informed questions to government about how the government is addressing risk.

In Carolina, for example, several interviewees described how they had no information about the quality of their drinking water nor about how the local municipality was planning to improve service delivery. No one Human Rights Watch interviewed knew of any way to access this information.

The Auditor General in a 2022 report also raised concerns about DMRE’s collection of data on derelict and ownerless mines: “As a result of the department’s inadequate capacity, systems and funds, the D&O mines database had not been regularly updated… and the database contains errors, resulting in data being inaccurate, outdated and incomplete.”[121]

The Promotion of Access to Information Act (PAIA) was intended to facilitate community access to critical information held by government authorities, but in practice this promise has not been fulfilled.[122] The act stipulates that requests for information should be communicated to the requesting party “as soon as reasonably possible” and within 30 days maximum.[123] Should the information officer fail to give a decision within this period, it is deemed a refusal.[124] Human Rights Watch submitted four requests between February and July 2021 about a variety of data related to water quality, abandoned mines, and deaths on unrehabilitated mine sites to the national DMRE and DWS. Although replies to three of the four information requests Human Rights Watch submitted were ultimately received, none came within the prescribed timeframe. One was returned three days after the deadline and the other two requests were returned three months late.

One request received no response at the time of writing – approximately one year later – despite following these formal requests with several phone calls and emails in the intervening period.

For example, Human Rights Watch submitted a request to DMRE on April 29, 2021 for directives issued in Mpumalanga to persons who have caused significant pollution or degradation to the environment and where they were directed by DMRE to take reasonable measures to minimise and rectify the pollution and degradation.[125] After three months of email correspondence and telephone calls, the DMRE emailed a letter stating they had granted access to the records but that those records could only be obtained from its Mpumalanga regional office. It took an additional month of email and telephone correspondence for more than three weeks with officials from the Mpumalanga regional office before Human Rights Watch received the requested information.

On June 15, 2021, Human Rights Watch submitted a request to the Department of Water and Sanitation (DWS) for Albert Luthuli Local Municipality’s water quality data, including water data for Caropark, Silobela, and the Carolina Treatment Works final water (outflow). The DWS failed to communicate an outcome within the legislated timeframe and when the information was provided, the water quality data was grossly incomplete and did not include any water quality data from the areas where residents where interviewed (Caropark, Silobela, and the Carolina Treatment Works final water (outflow)).

On July 2, 2021, Human Rights Watch submitted a request for reports on post-closure rehabilitation monitoring and maintenance of derelict and ownerless mines across South Africa, including reports on field investigations to these mines and information regarding the criteria used to rank the risks posed by the ownerless and derelict mines. Ten months after the request was submitted, and nine months after a decision is mandated by legislation, no outcome has been communicated by the DMRE.

In September 2020, the Pretoria High Court found that communities had the right to access information and have a right to see applications for mining licenses that might impact them. Previously communities had to go through PAIA to access information on applications for mining licenses, often facing rejections.[126]

South Africa has not ratified the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, commonly known as the Aarhus Convention.[127]

 

South Africa’s Domestic, Regional, and International Human Rights Obligations

The South African government has obligations under international human rights law to respect, protect, and fulfil fundamental human rights, such as the rights to health and water, the right to information, to protection of the home and family, and the right to a healthy environment. Amongst those obligations is the obligation to protect against abuses by third parties, including businesses such as mining companies, through effective regulation of company behavior to prevent harm to individuals and communities.[128] In addition, businesses have responsibilities to respect human rights, which governments are obligated to enforce through appropriate legislative, administrative, and judicial means, including access to an effective remedy if business related abuses occur.[129]

Right to Water

The South African government has international human rights obligations to respect, protect, and fulfil the right to water.[130] This right includes “access to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic use.”[131] While the African Charter on Human and Peoples’ Rights (ACHPR) does not expressly include the right to water, it is implied in the protection of rights such as the right to life, dignity, health, economic, social, and cultural development.[132] In 2019, the Guidelines on the Right to Water in Africa were adopted by the African Commission to provide further guidance for states on how to ensure access to safe, affordable, and sufficient water. This right is also explicitly recognised in section 27 of the South African Constitution.[133], [134]

The South African government is obligated to establish appropriate laws and regulations to protect individual’s enjoyment of the right to water from interference, and in particular abuse, by corporate activities and to ensure companies demonstrate due diligence.[135] The right to water in South Africa is in part given effect to through the National Water Act of 1998 (NWA), which is administered by the Department of Water and Sanitation (DWS).

Right to Health

The right to the highest attainable standard of health, first set out in the Universal Declaration of Human Rights, is guaranteed in multiple international treaties to which South Africa is party, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the African Charter on Human and Peoples’ Rights.[136] The right includes a right of access to health care, but also extends to protecting the underlining determinants of health, including against environmental degradation.[137]

The Committee on Economic, Social and Cultural Rights (CESCR) – which interprets and monitors compliance with the ICESCR has – interpreted the ICESCR to include both “[t]he requirement to ensure an adequate supply of safe and potable water and basic sanitation” and “the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.”[138] It further states that governments have an obligation to provide “information concerning the main health problems in the community, including methods of preventing and controlling them.”[139]

Section 27 of South Africa’s constitution also provides that “everyone has the right to have access to health care services.”

Right to a Healthy Environment

The United Nations Human Rights Council formally recognised the human right to a clean, healthy, and sustainable environment on October 8, 2021.[140]

Several regional human rights instruments also explicitly articulate a right to a healthy environment. For example, the ACHPR recognises the right of peoples to “a general satisfactory environment favourable to their development.”[141] 

Under South African law, the right to a healthy environment is guaranteed in section 24 of the constitution. The Constitution further states that “everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation.”[142]

The constitutional right to a healthy environment is in part given effect through the Mineral and Petroleum Resources Development Act of 2002 (MPRDA), administered by the Department of Mineral Resources and Energy (DMRE), and the National Environmental Management Act of 1998 (NEMA), administered by the Department of Forestry, Fisheries and Environment.

 

Acknowledgments

This report was researched and written by Vuyisile Ncube, fellow in the Environment and Human Rights division at Human Rights Watch, with additional research by Cara Schulte, Senior Associate in the Environment and Human Rights division, and Felix Horne, Senior Researcher in the Environment and Human Rights division, who also reviewed the report.

The report was reviewed by Richard Pearshouse, Director of the Environment and Human Rights division; Jim Wormington, Senior Researcher in the Business and Human Rights division; Kyle Knight, senior health and human rights researcher; Mausi Seguin, Executive Director, Africa division; Juliane Kippenberg, Associate director, Children’s Rights division. Aisling Reidy, Senior Legal Advisor, and Babatunde Olugboji, Deputy Program Director, provided legal and program review for Human Rights Watch.

Additional review was provided by Tarisai Mugunyani, Attorney in the Mining Program of the Centre for Environmental Rights.

The report was prepared for publication by Travis Carr, Senior Publications Coordinator. Hellen Huang, Associate in the Environment and Human Rights division, provided production assistance and support.

We would like to thank the members of Khuthala Environmental Care Group and residents in the communities of Wesselton, Caropark, and Silobela. In particular, we would like to thank: Philani Mngomezulu and Zethu Hlatshwayo, co-founders of the Khuthala Environmental Care Group, Florence ‘Yende’ Filane, and Albert Nzimande.

We also express our appreciation for South African NGO colleagues, lawyers, researchers and experts, in particular, the Federation for a Sustainable Environment, Association for Water and Rural Development, and Lorraine Kakaza from WoMin, who provided information for this report. Additionally, we are grateful to the following staff from the Centre for Environmental Rights for their contribution, insight and expertise: Thobeka Gumede, Attorney in the Mining Program; Tatenda Muponde, Attorney in the Mining Program; and Dimakatso Sefatsa, Candidate Attorney in the Mining Program.

Most importantly, Human Rights Watch is deeply grateful to all the courageous community members who so generously shared their stories with us.