Jagersfontein class action lawsuit imminent
Three people were killed and dozens injured a year ago when the tailings dam at the Jagersfontein diamond mine collapsed
Alittle over a year ago, in the early hours of 11 September, the tailings dam at the Jagersfontein diamond mine collapsed, releasing a torrent of thick grey sludge that engulfed the Free State town.
Three people were killed, dozens were injured, and more than 160 homes were destroyed or damaged by the deluge, which inundated rivers and farmland.
Richard Spoor, whose public interest law firm, Richard Spoor Inc Attorneys, is representing families affected by the disaster, said he hoped to file its application for a class action suit against Jagersfontein Developments, which owns the diamond tailings reprocessing facility, within the next few weeks.
“The idea is a class action. Step one is certification — it’s a slam dunk. I mean the common issues are: is Jagersfontein Developments responsible for this collapse, and the injuries and the harm that followed?”
There are two grounds on which the company could be held liable. “One is strict liability in terms of the National Water Act, or the Mineral and Petroleum Resources Development Act, or the National Environmental Management Act.”
All of those laws hold people liable for environmental pollution and contamination and the consequences, Spoor said. But there is another option “if they say well, environmental harm and pollution doesn’t include the destruction of people’s personal property and possessions”.
“We have a back-up claim for negligence so we will have experts who are willing to testify that this dam was a catastrophe; they were reckless and negligent.”
Jagersfontein Developments did not respond to the Mail & Guardian’s inquiries.
Spoor said the company had concluded about 36 agreements with people whose homes were destroyed and damaged “in terms of which they agreed to replace the homes but in return for a way of ending any claims against the mine”.
He slammed this as “oppressive and unlawful”.
“Residents don’t really have a choice but to conclude these agreements because they’re homeless … I mean, these people destroyed their homes and now you’ve got to beg and plead and accept the replacement of the homes on terms that they dictate to you,” he said. “It’s shocking and it’s because … the state hasn’t done anything to ensure they are compensated, that they don’t need to rely on the mercy of the mine.”
Spoor said his law firm’s laboratory analysis of the metals deposited in soil, sludge and sediment has shown that the kimberlite tailings contain a plethora of salts and toxins, including significant quantities of lead, arsenic, barium, thallium, nickel and hexavalent chromium.
Hexavalent chromium is toxic and carcinogenic and is “very nasty Erin Brockovich stuff”, he said. Meanwhile, laboratory analysis is being conducted for asbestos, which is commonly associated with kimberlite.
“We’ve done two studies of the tailings — one a kind of a size analysis, a particle size analysis — to get an idea of the size of the particles in the slurry, and what we find is a very significant proportion of the tailings are smaller than seven nanometres, very, very fine, which means two things,” Spoor said.
“One, it’s respirable when it’s dry and raised into the air and it can be raised into the air very readily because it’s so small, and respirable means it enters the lungs, it’s not trapped in the upper airways ... This goes into your lungs — it’s respirable dust.”
The other implication of the fineness of this material is that it can’t be filtered out of water. “You can remove it with flocculants. But you can’t filter it. Assuming this stuff is bad for people, or animals, or crops, you need it to run through a proper water treatment plant to make it safe and usable, you can’t just filter it. It makes it difficult to clean this up.”
Spoor said although there is a popular perception that because kimberlite tailings are alkaline — they are actually highly caustic — it’s not as big a problem as acid mine tailings, which mobilise metals and release them into the water.
“But the advice we’re getting from experts is that that is not necessarily the case at all … The rain is slightly acid and the continual interaction between this alkaline material and the acid rain is going to release this stuff over a very, very long time.
“I think, most importantly, we don’t know that this environment is safe for them to rebuild houses or for people to live [there] … but it’s not our job to come up with those answers,” Spoor said. “The authorities need to satisfy themselves that it is safe and I’m not sure that they’ve done that.”
The department of forestry, fisheries and the environment has issued one directive against Jagersfontein Developments, which requires it to undertake a human health risk assessment, which “will make a definitive finding on the overall toxicity of the material which entered the environment”, spokesperson Peter Mbelengwa said.
An October tailings analysis report by the University of the Free State detailed how there are low concentrations of uranium and arsenic in the collected samples of the tailings and the soil beneath it.
“The tailings material does contain elevated concentrations of nickel, chrome and barium. These elements are contained in the minerals of the kimberlite geology, the rocks from which diamonds are extracted.
“The mineralogical analysis indicates that a large proportion — that is, more than 30% weight of the tailings material — consists of clay materials.”
These minerals have the capacity to immobilise metals. “Thereafter, even though the tailings material does contain elevated concentrations of some metals, the probability of them being released into the natural environment is negligible. The mineralogical and total chemical results thus indicate that the tailings material is not toxic and does not pose a chemical toxicity risk for humans or the environment,” the report noted.
Wisane Mavasa, spokesperson for the department of water and sanitation, said it had issued a directive to Jagersfontein Developments, instructing the company to rehabilitate and restore the watercourses that were affected by the slimes because of the dam failure. These include the Wolwas Dam, Kromellenboog River, Proses Spruit, Riet River and the Kalkfontein Dam.
In November, it opened a criminal case against the company under the National Water Act and would now issue a warning statement to the alleged transgressor before the file is handed to the National Prosecution Authority.
The department issued numerous directives to Jagersfontein Development and instructed the mine to appoint an approved professional person to oversee the immediate emptying of the remaining compartment two of the tailings storage facility, “which still contains a significant volume of tailings, to avoid a secondary disaster from occurring”.
This person will assist the company in the decommissioning of the entire tailings dam. “The process of decanting this compartment two, which started in August 2023, is under way. Until this decanting process has been completed, the tailings dam is still regarded as unsafe”.
Mavasa said the department has appointed the universities of Pretoria and the Witwatersrand to investigate the causes of the failure “to assist the department to ensure that similar occurrences are prevented in future, and to improve its regulation of tailing dam safety”. This complex investigation is expected to be concluded by the end of March.
The physical footprint of the spillage covers an area of about 65km, which affected a range of ecological systems, Mbelengwa said.
The clean-up and rehabilitation is based on the instructions contained in the forestry, fisheries and the environment department directive as well as the directives issued by the Free State department of economic, small business development, tourism and environmental affairs and the water and sanitation department.
The three-tier approach was implemented within a week of the disaster and the various specialists were appointed by Jagersfontein Developments, he said. Mbelengwa confirmed that Piet-louis Grundling, a wetland rehabilitation specialist at the environment department, was asked by the Free State department to coordinate an intergovernmental team to direct the environmental rehabilitation.
It is estimated that large tracts of the affected area between the failed tailings dam and the Wolwas Dam have been cleared (about 40%), where the deposition of the material is thicker than 10cm.
Hexavalent chromium is toxic and carcinogenic and is ‘very nasty Erin Brockovich stuff’