A recent study by the civil society Tailings Working Group, discussed in an opinion piece published by IOL on 7 October 2026, found that only 29 tailings dams are registered under South African law, against approximately 337 tailings dams recorded in the Department of Water and Sanitation (DWS) database as at 2023. The study further reported that the DWS itself does not know how many tailings dams exist in the country. The findings follow the Jagersfontein failure of 11 September 2022, which killed five people, and the Samancor Chrome tailings facility failure at Brits in August 2025, a facility the study says did not appear on the DWS dams register last updated in July 2025.

The figures come from an advocacy source and should be read as such. Even so, the underlying point is one mine owners should take seriously: a tailings dam that is not registered is not a regulatory technicality. It is an unmanaged environmental risk, an enforcement exposure and, after a failure, a significant liability for the company and its directors.

The Registration Obligation

Under the National Water Act 36 of 1998 (NWA) and the dam safety regulations made under it, owners of a “dam with a safety risk” must register the facility with the DWS. Section 117 of the NWA defines such a dam by reference to a storage capacity of more than 50,000 cubic metres of water or “any other substance” and a wall height of more than five metres. Tailings facilities fall squarely within that definition, because the definition is not limited to water.

Registration is the entry point to the dam safety regime. It places the facility on the regulator’s radar and triggers classification, the appointment of an approved professional person, and the safety inspection and reporting duties that follow. The study notes that about 180 of the 337 recorded facilities were too small to qualify as dams with a safety risk, so the obligation does not extend to every tailings facility. It also stresses that the 29 registered dams cannot be read as 29 compliant companies: a compliant owner would have registered every qualifying dam in its care, and the register suggests only some 25 companies have done so.

Why This Is An Environmental Issue

Tailings are not clean water. They hold heavy metals, acids and, at some operations, cyanide, and the source cites research that tailings dams fail at rates well above conventional water dams. A failure releases toxic mudflows, contaminates surface water and groundwater for generations, and destroys downstream ecosystems. The risk is compounded by ageing infrastructure not designed for current extreme weather, and by inadequate drainage and water-balance management, which was identified as a failure point at Jagersfontein.

That environmental dimension is why registration and dam safety sit alongside, and do not replace, the owner’s other duties. Section 28 of the National Environmental Management Act 107 of 1998 (NEMA) imposes a duty of care to prevent, minimise and remedy pollution and degradation. Section 19 of the NWA places an equivalent obligation on those who own or control land on which pollution occurs. Neither duty depends on whether the facility was registered. An unregistered dam is regulated in the same way as a registered one; it is simply less visible, and less likely to be inspected until something goes wrong.

A Fragmented Regulatory Framework

The source argues that tailings are governed by at least six overlapping instruments, which complicates compliance and enforcement u2013

• Multiple regimes: the NWA, the Mine Health and Safety Act 29 of 1996, the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), the 2015 mining residue regulations, the SABS code of practice and the former Department of Minerals and Energy guideline all bear on the same facility;
• One Environmental System: since 2014, mining-related environmental authorisations have been processed under NEMA and the National Environmental Management: Waste Act 59 of 2008 with a 300-day decision timeframe, but the source describes implementation as inconsistent, and notes concerns about the same department promoting mining and enforcing environmental rules;
• Water use licensing: tailings facilities typically require water use licences under section 21 of the NWA, and the source reports that substantial numbers of mines have been recorded as operating without valid licences, although official figures are contested; and
• Enforcement capacity: the source cites parliamentary and media reporting that the DWS has only four permanent dam safety inspectors for more than 5,700 registered dams, a backlog of over 500 unprocessed safety reports, and overall compliance with mandatory safety reports of about 33%.

Liability And Accountability

Weak enforcement capacity should not be mistaken for low legal risk. Failure to register a dam with a safety risk is an offence under the NWA, and the source records calls for retrospective prosecution of non-compliant mines. After Jagersfontein, the DWS dam safety head publicly warned of fines for non-compliance. A tailings failure also engages section 24N(8) of NEMA, under which directors can be held jointly and severally liable for environmental harm caused by the company, an approach confirmed in the recent Supreme Court of Appeal decision in Topigs Norsvin v Eskom. Directors who cannot show that every qualifying facility is registered, inspected and monitored will find it difficult to argue that they exercised appropriate oversight.

The source also argues that the Companies Act 71 of 2008 may be used by affected communities, who can contend that disregard for their safety is “unfairly prejudicial” conduct, and notes the voluntary Global Industry Standard on Tailings Management (launched August 2020 after the Brumadinho disaster) as a benchmark increasingly relied on by investors and lenders. The source also calls for a standalone, publicly accessible and regularly updated tailings dam register, and for public access to the DWS water use register (WARMS). These are proposals, not law, but they signal the direction of travel on transparency.

Practical Steps For Mine Owners

• conduct an inventory of every tailings facility, including dormant, historic and care-and-maintenance facilities, and test each against the section 117 NWA and dam safety regulation thresholds;
• register all qualifying facilities promptly, and confirm that classification, approved professional person appointments and safety inspection reports are current and filed;
• reconcile each facility against its environmental authorisation, water use licence and approved environmental management programme, and correct mismatches in a timely manner;
• obtain independent geotechnical review, including climate-adjusted design flood and water-balance assessments; and
• brief the board in writing, so that director oversight is documented, and consider voluntary disclosure to the DWS where historic non-registration is identified.

Conclusion

The registration gap described in the source is a reminder that tailings safety begins with knowing what exists and who is responsible for it. As expectations of transparency rise, and as courts show growing willingness to attach personal liability to those controlling companies, owners who regularise their position voluntarily will be better placed than those who wait for an incident or an inspection. Verification of the source’s figures against the current DWS dams register is advisable before they are relied on in any formal submission.

How LexEco Can Assist

LexEco advises mining companies, directors, lenders and investors on tailings and mine residue compliance, including:

• auditing tailings facilities against dam registration, classification and safety inspection requirements;
• preparing and lodging dam registrations, and regularising historic non-compliance with the DWS;
• aligning water use licences, environmental authorisations and closure plans with the actual facility footprint;
• advising boards and directors on oversight duties and personal liability exposure under NEMA; and
• responding to inspections, directives and investigations following an incident.

Contact LexEco to discuss your tailings dam registration and compliance position.