On 14 July 2025 the High Court of South Africa, Gauteng Division, Pretoria handed down judgment under case number 9952/2019 in the matter between Petrus Johannes Barnard & Others v The Minister of Environmental Affairs and Others (Barnard Judgment).
Barnard and Others (Plaintiffs) brought a claim for damages which they alleged arose from government’s “working for water program” due to contamination of irrigation dams while conducting eradication of alien vegetation on the Plaintiffs’ farm.
In the course of determining whether the Plaintiffs would succeed with their delictual claim for damages, the court had to canvass the “Duty of Care”. The court concluded (at paragraph 175) that “… the plaintiffs were owed a duty of care which is grounded in Section 24 of the Constitution”, and at paragraph 176 that “… the above Constitutional right is supported by a raft of legislative provisions, primary amongst them which is the NEMA. As articulated by the SCA in Global Environmental Trust & Others v Tendele Coal Mining (Pty) Ltd & Others at par 31: “both the MPRDA and NEMA are statutes that give effect to the right to have the environment protected for the benefit of present and future generations, enshrined in s 24 of the Constitution. It is a settled principle that courts are required to interpret statutes purposefully, in conformity with the Constitution and in a manner that gives effect to the rights in the Bill of Rights”. The court also emphasised that the defendants cannot contract out of constitutional or statutory obligations and the Minister and the relevant Departments had failed in the performance of their roles and responsibilities.
The court held the defendants liable for breaching the “Duty of Care” and awarded damages in favour of the Plaintiffs.
The “Duty of Care” principle has been developed at regular intervals by the South Africa Courts, and has been applied consistently.
Judgments referred to, most typically, in relation to the “Duty of Care” are the following:
– Harmony Gold Mining Company Limited v Regional Director: Free State Department Water Affairs & Others under case number 68161/2008 revised on 29 June 2012 (High Court, North Gauteng, Pretoria);
– Harmony Gold mining Company Limited v Regional Director: Free State Department of Water Affairs under case number 971/12 (Supreme Court of Appeal);
– Ezulwini Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy, case number 289/2021 (Supreme Court of Appeal); and
– South African Human Rights Commission v Msunduzi Local Municipality and Others (2021) 3 ALL SA 939 (KZP) (High Court, KwaZulu-Natal, Pietermaritzburg).
In Harmony 2012, which specifically deals with mining operations, the court highlighted the Constitutional Court’s findings in para 67 of Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others where it was emphasised that “NEMA principles “apply . . . to the actions of all organs of state that may significantly affect the environment”, and they provide not only the general framework within which environmental management and implementation decisions must be formulated, but they also provide guidelines that should guide state organs in the exercise of their functions that may affect the environment. Perhaps more importantly, these principles provide guidance for the interpretation and implementation not only of the National Environmental Management Act (NEMA) but any other legislation that is concerned with the protection and management of the environment.
In dealing with both Section 19 of the National Water Act and Section 28 of the NEMA, the Court found (in paragraphs 20 – 23) that:
– The duty of care principle can extend to both current and former landholders, and Section 19 of the National Water Act applies to persons who had the right to use the land at the time of the actual or potential pollution, as well as and any person who had negligently failed to prevent potential or actual pollution [para 21].
– “When one considers s 19 (1) and (2) and their interrelation with s 28 of NEMA, it becomes clear that they are couched in strikingly similar terms. Both focus on preventive measures, and identify the persons on whom an obligation rests to take reasonable measures to prevent pollution as the owners, or persons in control of the land or premises, or persons who have the right to use the land.”
The Harmony case was taken up to the SCA and the findings of the High Court were confirmed by the SCA, i.e. the duty of care principle applies to both current and former landholders.
In Ezulwini [2023] the SCA found that Ezulwini Mining Company remained responsible for the pumping and treatment of extraneous water from the underground workings of the mine until such time a closure certificate had been issued to it by the Department of Mineral and Petroleum Resources. While not specifically dealing with Section 28 of NEMA and Section 19 of the NWA, the SCA re-emphasized its findings in the Harmony SCA matter, and the obligations imposed on the mining companies in terms of environmental legislation [para 40].
The question often turns to what constitutes “reasonable measures”.
The current environmental “Duty of Care” principle was implemented through the promulgation of Section 28(1) of NEMA read with section 28(1A) of NEMA.
Compliance with the statutory duty of care requires the taking of “reasonable measures” to prevent environmental harm or pollution from occurring, continuing or recurring. What constitutes “reasonable measures” in any particular matter will depend on the relevant facts and circumstances i.e. the specific circumstances in relation to each of the operations, independently.
Where statutory mechanisms and frameworks are provided for, such as an Environmental Management Programme, if the Environmental Management Programme is complied with, this may meet the requirements to take “reasonable measures”. Where there is no such mechanism such as an Environmental Management Programme, what is reasonable will usually depend on the magnitude of the risk posed and the utility, cost and difficulty of taking preventative steps (Pretoria City Council v De Jager 1997 (2) SA 46 (A) and Hershel v Mrupe 1954 3 SA 464 (A) at 477). Factors such as “industry best practice” will also be important in determining whether “reasonable measures” had been taken.
In the case of Harmony Gold Mining Company v Regional Director: Free State, Department of Water Affairs and Forestry (2006) ZA SCA 66 (RSA), the court held that the legislature intended the term “reasonable measures” to lay down a flexible test dependent on the circumstances of each case and that the measures required are not limited to measures only on the land mentioned in Section 28(1) of NEMA.
Implicit in the duty to take “reasonable measures” is the recognition that there may be a residual risk of environmental harm which will not or is unlikely to be adequately addressed by the implementation of the measures. This in itself, does not indicate that reasonable measures have not been taken.
Although not specific to mining operations, Section 28(3) of NEMA prescribes what “reasonable measures” may entail:
“(3) The measures required in terms of subsection (1) may include measures to-
(a) investigate, assess and evaluate the impact on the environment;
(b) inform and educate employees about the environmental risks of their work and the manner in which their tasks must be performed in order to avoid causing significant pollution or degradation of the environment;
(c) cease, modify or control any act, activity or process causing the pollution or degradation;
(d) contain or prevent the movement of pollutants or the causant of degradation;
(e) eliminate any source of the pollution or degradation; or
(f) remedy the effects of the pollution or degradation.”
Subsequent to the decision in Bareki N.O. and Another v Gencor Ltd and Others 2006 1 SA 432 (T), which held that Section 28 of NEMA is not retrospective in its application, and the obligation to take corrective measures does not apply where the pollution was caused before the date of commencement of NEMA, Section 28 was amended by the inclusion of Section 28(1A) of NEMA.
Section 28(1A) of NEMA specifically provides that the duty of care referred to in Section 28(1) of NEMA also applies to pollution or degradation that (a) occurred before the commencement of NEMA, (b) arises or is likely to arise at a different time from the actual activity that caused the contamination or (c) arises through an act or activity of a person that results in a change to pre-existing contamination.
In terms of Section 28(1A) of NEMA, the duty of care to take reasonable measures extends to historical operations.
The duty to take “reasonable measures” rests, in the first place with the persons mentioned in Section 28(2) of NEMA. Section 28(2) provides as follows:
“(2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, include an owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which-
(a) any activity or process is or was performed or undertaken; or
(b) any other situation exists,
which causes, has caused or is likely to cause significant pollution or degradation of the environment.”
Even in circumstances where a historical miner no longer owns the land on which the historical operations took place, it is clear from the introductory words to Section 28(2) that the obligation rests on any person whose actions cause, have caused or are likely to cause “significant pollution or degradation of the environment”.
If property is disposed of by a mining company, this does not absolve the mining company of its statutory duty of care. In addition, if the purchaser indemnifies the mining company against any obligation that may be imposed by Section 28 of NEMA relating to environmental damage that occurred prior to the transfer of the property and against any claims that may arise in relation to the costs of remediating environmental damage, the indemnity does not absolve the mining company of its statutory responsibilities. The indemnity would not prevent the relevant regulators from taking steps against the mining company to ensure that the mining company complies with its statutory duties. The indemnity would however provide the mining company with a basis to recover any costs that it incurs in complying with its duty of care.
A range of consequences can flow from non-compliance with the “duty of care”.
This includes private prosecution. NEMA makes specific provision for private prosecution and establishes lesser requirements that must be met, for a private prosecutor to initiate prosecution under NEMA.
The judgment of the High Court, Gauteng Division, Pretoria on 1 April 2019 in the matter of Uzani Environmental Advocacy CC (Uzani) and BP Southern Africa Proprietary Limited (BP) was groundbreaking in several respects, primarily because it resulted in the private prosecution of BP in relation to the so-called “rectification applications” i.e. applications for rectification in terms of Section 24G of NEMA (prior to amendment).
The court confirmed that private prosecutors can step into the gap created by a failure of the Director of Public Prosecutions to prosecute applicants that have submitted applications in terms of Section 24G of NEMA.
BP was successfully prosecuted by Uzani acting as private prosecutor, on various charges, based on the applications in terms of Section 24G of NEMA. BP in its capacity as the corporate entity was prosecuted (although BP was represented by a director in his representative capacity).
In summary, the judgment confirms that (a) private prosecutions can be initiated in relation to environmental breaches, and (b) third parties can initiate private prosecution.
The prosecution of BP was addressed in four judgments including the third judgment which was handed down on 6 September 2024, where BP was sentenced for the contraventions under the provisions of NEMA, and its predecessor, the Environmental Conservation Act. The total amounts of the fines imposed on BP was approximately R59 million. In the most recent judgment handed down on 20 March 2025, the court closed out on the issue of costs to be awarded to the private prosecutor.
In summary, this matter spanned many years from 2017, and resulted in four judgments of the High Court addressing the right to bring a private prosecution for contravention of Environmental Laws, the fines to be paid by the “offender”, and the costs that can be recovered by the private prosecutor.
Additional consequences include:
- Reputational risk – often when the “duty of care” has not been complied with this can result in an impact on a company’s reputation and its relationships with key stakeholders such as the regulators, communities, trade unions, employees, investors and other business partners;
- Media and publicity – non-compliance often results in unwanted media attention (particularly on social media) which plays into the reputational consequences referred to above. Adverse publicity also often leads to intervention by stakeholders such as the regulators, trade unions, non-governmental organisations, etc.;
- Disruption to operations – issuing of instructions and directives. NEMA and the National Water Act provide for the issuing of instructions and directives;
- Criminal prosecution – NEMA and the National Water Act provide that non-compliance with the responsibilities under the relevant legislation and/or any terms and conditions of a licence/authorisation is a criminal offence, and a range of persons can be prosecuted including the company, its directors and officers, environmental and relate advisors, and any persons who have actually cause or may cause pollution;
- Consequences in respect of mining rights, environmental authorisations and other licences. The Mineral and Petroleum Resources Development Act, No. 28 of 2002 (MPRDA) requires the holder of a relevant right to comply with the provisions of the MPRDA, the terms and conditions of the relevant right, and all other legislation such as NEMA, the National Water Act, the Mine Health and Safety Act, No. 29 of 1996 (MHSA), etc. Non-compliance could result in the suspension or revocation of a relevant right;
- Delictual damages – as mentioned above, the Barnard Judgment specifically addressed delictual damages arising out of a breach of the “duty of care”.
While the focus is often on the environmental “duty of care”, it is always important to adopt a holistic approach, and the health and safety responsibilities under the provisions of the MHSA should be included in any compliance system. Additionally, and in particular, mining companies, must also comply with the social “duty of care” often encompassed under the principle of the “social licence”.
It is only by adopting a holistic approach, that companies, particularly in the mining sector, can ensure compliance with the “duty of care” and avoid the various consequences referred to above.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.