Centre for Environmental Rights – Advancing Environmental Rights in South Africa

JOINT MEDIA RELEASE BY THE FEDERATION FOR A SUSTAINABLE ENVIRONMENT AND THE CENTRE FOR ENVIRONMENTAL RIGHTS

PROSECUTION OF ANKER COAL AND MINERAL HOLDINGS PTY LTD

FOR VIOLATING ENVIRONMENTAL LAWS

22 FEBRUARY 2011

1.     The Federation for a Sustainable Environment (FSE) has received confirmation from the Director of Public Prosecutions in Mpumalanga (“the DPP”) that it intends prosecuting Anker Coal and Mineral Holdings Pty Ltd (“Anker Coal”) and various individuals and companies involved with Anker Coal for violations of environmental laws in two separate prosecutions. The charges were laid by the Highveld Headwaters Protection Group, a voluntary association based in Mpumalanga.

2.     FSE has been advised by the DPP that summonses were served on the various accused last week for a first court appearance in the Ermelo Regional Court on 10 March 2011.

State v Grey Venter, Nhambo Jambi, Albrecht Frick and Anker Coal

3.     The four accused in this case are:

a.     Accused no. 1: Grey Venter, an employee of ACS Core Drilling, allegedly contracted by Anker Coal to conduct drilling for prospecting;

b.     Accused no. 2: Nhambo Jambi, a senior geologist at Anker Coal who allegedly guided the drilling;

c.     Accused no. 3: Albrecht Frick, a director of Anker Coal, who allegedly made various statements to the farm owner and the Department of Mineral Resources (DMR) now alleged to have been fraudulent;

d.     Accused no. 4: Anker Coal

4.     The nine counts in the charge sheet relate to drilling for coal prospecting on the farm of Dr Collins Forbes at Steenkoolspruit near Amsterdam in Mpumalanga between January 2009 and April 2010 allegedly in a manner that contravene numerous provisions in environmental legislation, including the National Environmental Management Act, 1998 (NEMA), the National Water Act, 1998 (NWA) and environmental provisions in the Minerals and Petroleum Resources Development Act, 2002 (MPRDA). Charges include:

a.     drilling a borehole within 10 metres from the banks of the Usutu River, causing groundwater to flow continuously from the borehole;

b.     failing to fill and cap all boreholes properly;

c.     failing to remove core drillings from the drilling sites;

d.     drilling boreholes within a wetland;

e.     failing to manage environmental impacts in accordance with the approved environmental management plan (EMP); and

f.      failing to comply with a notice issued by the DMR Regional Manager to take immediate rectifying steps to rehabilitate all boreholes that had been left unsealed, to remove all core materials dumped in the wetland and to submit a rehabilitation plan.

5.     Albert Frick (accused no. 3) and Anker Coal (accused no. 4) are also charged with fraud for allegedly:

a.     leading Dr Collins Forbes, the owner of the farm, to believe that:

i.     he was required “as part of a formality” to sign certain documents presented by Anker Coal;

ii.     that only 12 holes would be drilled as part of phase 1 of the prospecting, after which he would be consulted before further holes were drilled;

iii.     that all drilled holes would be properly filled under pressure and capped; and

iv.     that all operations would be conducted in accordance with the EMP and the NWA.

b.     leading the Regional Manager of the DMR to believe that Anker Coal would use its own experienced exploration and drilling company known as AKE Equipment Pty Ltd who employed two professional geologists, one with more than 35 years’ experience in the geology of the area. In fact, Anker Coal used ACS Core Drilling.

c.     making a long list of misrepresentations in its EMP submitted to the DMR, including:

i.     that there were no fauna on the site;

ii.     that the area only comprises grassveld cover without trees or plants;

iii.     that no water would be extracted from a river, stream, dam or pan for use in the operations;

iv.     that the proposed operation would be more than 60 metres from open water;

v.     that consultation with interested an affected parties took place, including with Dr Collins Forbes.

d.     misrepresenting to the DMR that all drilling sites except one had been sealed and drilling core removed.

6.     According to the charge sheet, if found guilty of all charges, the accused face maximum penalties exceeding R6,6 million (excluding unlimited fines for charges of fraud) and more than 25 years’ imprisonment.

State v Sonita Kruger, Robert Pryde, Albrecht Frick, Anker Coal and Golfview Mining Pty Ltd (Golfview Mining)

7.     This case relates to opencast coal mining activities at the farm Leliesfontein near Ermelo in Mpumalanga.

8.     The five accused in this case are:

a.     Accused no. 1: Sonita Kruger, an environmental officer and employee of Anker Coal

b.     Accused no. 2: Robert Pryde, mine manager of Anker Coal

c.     Accused no. 3: Albrecht Frick, a director of Anker Coal

d.     Accused no. 4: Anker Coal

e.     Accused no. 5: Golfview Mining Pty Ltd

9.     The sixteen counts in the charge sheet relate to opencast coal mining between March 2009 and August 2010 that allegedly took place in a manner that contravenes numerous provisions in environmental legislation, including NEMA, the NWA, environmental provisions in the MPRDA and the Mpumalanga Nature Conservation Act, 1998. Charges include:

a.     diversion of the Holbankspruit and its tributary, and conducting mining activities within 100 metres of and within the 1:100 year floodline of the Holbankspruit and its tributary;

b.     the failure to put in place adequate pollution control measures, including evaporation dams, and the failure to separate dirty and clean water at the mining site;

c.     constructing and using a washing bay on site on a downslope towards the Holbankspruit;

d.     mining in a wetland;

e.     dumping rocks and other materials obtained from opencast mining activities into the Holbankspruit;

f.      failing to manage environmental impacts, residue stockpiles and deposits in accordance with the approved EMP;

g.     failing to manage residue stockpiles and residue deposits;

h.     operating a new mine without notifying the DMR;

i.      failing to obtain an environmental authorisation under NEMA for three listed activities.

10.  Albert Frick (accused no. 3), Anker Coal (accused no. 4) and Golfview Mining are also charged with allegedly:

a.     submitting inaccurate, incorrect and misleading information to the DMR by stating in their application and EMP submitted to the DMR that there were no wetlands on the property, and that no wetland or river would be mined; or

b.     alternatively, with fraud for making misrepresentations to the DMR that there were no wetlands on the property, and that no wetland or river would be mined.

11.  According to the charge sheet, if found guilty of all charges, the accused face maximum penalties exceeding R12 million (excluding unlimited fines for charges of fraud, and a R10,000 per day fine under the Mpumalanga Nature Conservation Act) and more than 80 years’ imprisonment.

Statement by FSE

12.  The two cases described above are the first of a number of cases in which criminal charges have been laid by affected parties against mining operations in the Belfast, Carolina and Ermelo regions after the relevant authorities failed to enforce environmental laws against mining companies despite requests for them to do so over several years.

13.  The charge of fraud relating to misrepresenting information supplied to authorities in its EMPs is also a warning to mining companies as to their liability for providing incorrect information supplied in prospecting and mining right applications.

14.  FSE is aware of charges against Xstrata Alloys’ Onverdacht Colliery, Xstrata Coal’s Tselentis mine, Northern Coal’s Jagtlus Colliery, Coal of Africa’s Mooiplaats mine (Langcarel mine) and Umlabu Colliery.

15.  We express the hope that the other cases will follow shortly in the interest of the affected communities, the environment and to stop the damage that is and has been caused daily by the criminal actions of the above companies and its officers. The time has passed whereby the mining fraternity is a law unto themselves and whereby they feel it their right to break the law and cause injury to parties around them with impunity. They have to realise that their actions must be in accordance with all of the laws of the country, and they must obey those laws just as any other citizen has to do.

FSE quotes attributed to, and further queries to, Koos Pretorius, Director, [email protected], 083 986 4400.

Statement by the Centre for Environmental Rights

16.  The Centre for Environmental Rights welcomes the decision by the National Prosecuting Authority to prosecute the mining companies and involved individuals in these two cases. We would like to point out the following:

a.     There is little point in having a regulatory system if there is ineffective or absent compliance monitoring and enforcement of regulations. Relying on “self-regulation” by mines, as has been the case for a very long time in this country, has resulted in environmental disasters like acid mine drainage. In addition, it is fundamentally unfair to those companies that incur the significant cost of compliance with environmental laws that some companies are allowed to get away with avoiding those costs. Lack of enforcement against rogue companies means that those who do comply are at a competitive disadvantage.

b.     It is, in many ways, unfortunate that these two prosecutions came about through the action of affected and concerned parties, when such prosecutions should be initiated by the departments responsible for implementing NEMA, and particularly the NWA and the MPRDA. We know from information provided to Parliament that the Department of Water Affairs and the Department of Mineral Resources are severely under-resourced in relation to compliance monitoring and enforcement (more information on these capacity constraints available on request from the CER). The lesson from these two cases against Anker Coal (and cases to follow referred to by FSE above) is not that civil society should take over these functions, but that we need to employ, resource and train far more compliance and enforcement officials in the DWA and the DMR.

c.     Having said that, affected parties and civil society organisations frustrated with the lack of enforcement action against mining companies should be empowered by the NPA’s decision to prosecute in this case – the law provides rights and remedies to civil society to take action even where authorities fail to do so. Civil society organisations and members of the public should also remember that, in the case of a successful conviction for offences under NEMA, the NWA and other environmental legislation, a court can award up to ¼ of the fine imposed to “the person whose evidence led to the conviction or who assisted in bringing the offender to justice”.[1]

d.     Owing to the absence, in the past, of effective compliance monitoring and enforcement of environmental laws and provisions in the MPRDA against mines, the significant maximum penalties faced by the accused in these cases may come as a shock to many mining companies. It is important to note, as is illustrated by the Anker Coal cases, that many crimes against the environment constitute separate criminal offences under several different acts, which means that the cumulative penalties can be severe.

e.     What should also be noted is the NPA’s decision not only to prosecute the mining companies in question, but also a director, employees and subcontractors of these mining companies. South African law provides for the criminal liability for all these parties for violations of environmental law. Note also that a person is barred from becoming or continuing to be a director of a South African company if he or she has been convicted of an offence involving dishonesty, fraud or misrepresentation.[2]

f.      If Anker Coal is convicted, questions should also be asked as to whether existing rights given to Anker Coal should be suspended or cancelled by the Minister, and whether Anker Coal should ever be given other rights and permits under the MPRDA and the NWA.

Joint statement of thanks

17.  Both FSE and the Centre for Environmental Rights thank the NPA for their commitment to environmental justice and their dedication and hard work in bringing these two cases to the courts.

Quotes attributed to, and further queries to, Melissa Fourie, Executive Director, Centre for Environmental Rights, [email protected], 021 447 1647 or 072 306 8888.

Requests for copies of the charge sheets can be submitted to Mona Moerane from the National Director of Public prosecutions – [email protected] or 084 845 8260. Copies of the charge sheets and summonses should also be available from Clerk of the Ermelo Criminal Court on 017 819 3462.

Dr Collins Forbes, the owner of the farm Steenkoolspruit, can be reached at 082 376 6504.

[2] S.218 of the Companies Act, 61 of 1973 and s.69 of the new Companies Act, 71 of 2008 (not yet commenced).