Dr Duarte da Silva: The keys to the cage

South Africa’s goldfields remain trapped by R100bn in locked rehabilitation funds and legal deadlocks over historic tailings and open-ended liabilities. Dr Duarte F da Silva outlines a actionable roadmap featuring nine targeted legislative clauses. By establishing liability caps, vesting rights for remediators, and unlocking existing provisions, this strategy turns environmental hazards into viable economic resources..By Dr Duarte F da Silva.Every second life on the goldfields (the dumps, the uranium, the mud, the void, the ground) waits on the same missing thing: a legal category for the value a cleaner creates by cleaning, and a rule that lets the hundred billion rand lodged against closures that never come be spent on remediation that could. This paper moves from diagnosis to drafting. It sets out nine clauses, each aimed at a specific section of a specific Act, and it opens the money first, because the money is not what the usual account says it is..The locks on the goldfields' second life have been named often enough: no property in the remediated output, no licence path built for the remediator, no assignment of orphaned liability, no right to sell into the public network, and no standard that separates treatment-to-discharge from treatment-to-resource. What has not been done is the drafting. The money turns out to be different from the "sixty billion frozen" that is usually quoted: that is a nine-year-old figure for a stock that is now a hundred billion, less than half of which is cash, and the cash half is barred by regulation from being spent on anything except a closure that never comes. The title rests on a 2007 judgment putting historic dumps outside the minerals statute, which has survived a 2008 amendment, a 2013 bill withdrawn in 2018 and a 2025 bill that has not reached Parliament. The certificate problem has a reform on the statute book since 2023, allowing provisions to be drawn down for ten years before closure, which still waits on regulations whose compliance date has been deferred repeatedly and now stands at "a date to be published". The drafting follows: nine clauses aimed at sections of Acts that exist, with precedents from Washington, Brussels and Brisbane showing that none of it is exotic..I. From diagnosis to drafting.Five streams on the goldfields can be costed: the surface sand, the uranium in it, the metals in the treatment sludge, the head in the shafts and the ground under the dumps. Each ends at the same wall. The operator that would treat a derelict dump cannot be certain of owning what it recovers. The operator that would strip uranium from a residue cannot inherit the residue's obligation at a known figure. The concession that would sell gypsum from a state treatment plant cannot sell what the law calls waste. The vehicle that would build a storage plant in a closed shaft cannot lease a shaft whose owner stays liable for it until a certificate nobody issues. And the land company that would take a cleared footprint to market cannot take title from a right-holder whose closure has not been signed. The obstacle is in the law rather than the rock, and the legal diagnosis is well known: the mine-water debate has named its locks, and the closure debate the deadlock behind the certificate. What remains is to draft the remedy.Three things have to be settled before the drafting. The money comes first, because every version of the argument says "sixty billion sits frozen" and the number is wrong in both size and kind. Then the title, because the claim that a cleaner may own what he cleans runs straight into a High Court judgment that has governed the ownership of the Witwatersrand's dumps since 2007. Then the statute book as it stands in October 2026, because one reform the remedy needs is already law but unregulated, and one bill it would otherwise have to draft is already published but untabled. The clauses follow, each aimed at a named provision..The obstacle is legal, and the diagnosis is known. Before the remedy can be drafted, the money, the title and the statute book have to be opened, and none of them is what the usual account says..II. A hundred billion, and what each part is allowed to do.The figure everyone quotes, around sixty billion rand of rehabilitation provisions, comes from a tally of May 2017 assembled by investigative journalists through access-to-information requests. It put the total at "at least R57 billion", against a departmental estimate of R45 billion in 2015, with Mpumalanga at 17.5 billion, North West at 11.9 billion, the Gauteng and Free State goldfields at 15.5 billion and Limpopo at 8.6 billion. The figure is nine years old, and even its baseline is disputed: the Heinrich Böll Foundation's 2026 review puts the 2015 stock at sixty billion rather than forty-five. The Department told Parliament on 8 November 2022 that the stock was 94.5 billion rand: 3.1 billion in cash, 66.9 billion in bank guarantees and 24.5 billion in trust funds. The most recent assembly, published in April 2026, puts the 2025 stock at 99.632 billion: 53.297 billion in trust funds, fifty-three per cent; 45.909 billion in bank guarantees, forty-six per cent; and 426 million in cash, less than half of one per cent. Set against the Department's 2022 figures, the mix has shifted: trust funds have roughly doubled, from 24.5 to 53.3 billion, while guarantees have fallen from 66.9 to 45.9 billion and cash from 3.1 billion to 426 million. On the two tallies, more of the stock is now real money, but the growth is in the one compartment the regulations lock away. How the total is made up matters more than its size.Nearly half of it is not money at all. A bank guarantee is a contingent instrument, a bank's promise to pay the state if the mine defaults on its rehabilitation. It sits in no account and is drawn only when the Minister calls it, and the department, as Oxpeckers reported in 2017, had "yet to provide an instance in which this money has been used". The trust half is money, but regulation ties it to a different purpose. Regulation 8(1)(c)(i) of the 2015 financial-provisioning regulations bars a trust fund from being used for the annual or final rehabilitation provision and reserves it for latent and residual impacts after closure; the Minister's power to draw on a provision depends on a holder's failure to rehabilitate, and regulation 14(5) lets the Minister retain part of it at closure against latent and residual impacts. So the trust money can be spent after closure, which does not come, and the guarantee can be called on failure, which is not declared. The usual line, "sixty billion frozen against closures that never come", has the spirit right and the particulars wrong. The stock is a hundred billion; nearly half of it is a bank's letter; the rest is legally reserved for a phase the certificate regime never reaches; and the cash, at 426 million rand, would not cover one year of the state's water treatment on the three Witwatersrand basins, budgeted at 562 million in 2026/27.Set beside it the liability the money is meant to cover. The Auditor-General's 2022 performance audit found the Department managing 6,100 derelict and ownerless mines, up from 5,906 in 2009: 261 asbestos sites and 2,322 other high-risk sites, thirty-two asbestos sites rehabilitated to 2021 and none of the 2,322, 2,238 sites with no risk ranking at all, and a rehabilitation rate of 1.67 to 2.25 sites a year against a need the auditor put at more than fourteen billion rand and a budget of 124 million. The Department's director-general had put the bill at approximately 48 billion in 2019, a figure the press rounded to 49. A peer-reviewed analysis of the same register in April 2025 found that only 752 of the 6,100 need rehabilitation, that 961 are still operating and 674 have identifiable owners, that fifty-five had been rehabilitated by November 2021, and that the database is not public "for supposed security reasons". The Department's 2026/27 budget for derelict and ownerless mines is 140.87 million rand. It told Parliament in June 2026 that it had sealed 1,026 unsafe openings nationally; the Deputy Minister counted forty Gauteng shafts sealed in 2025/26 and more than six hundred since 2019. In August 2026 a parliamentary reply on a liquidated mineral-sands mine recorded that its guarantee of 20.1 million rand had been found "insufficient" and had not been called, which is the guarantee gap in a single case. On one side sit a hundred billion rand of provisions; on the other, a fourteen-billion-rand derelict backlog the state funds at 140 million a year; and no instrument moves money from the first to the second.. "Sixty billion frozen" is a hundred billion: nearly half a bank's letter, the rest reserved by regulation for a phase the certificate regime never reaches, under half a per cent cash. No instrument moves a rand of it to the fourteen-billion-rand derelict backlog..III. Who owns a dump poured before May 2004.The claim that a cleaner may own what he cleans runs into a judgment before it reaches a statute. On 13 December 2007 the Free State High Court, in De Beers Consolidated Mines against Ataqua Mining, held that a tailings dump is a movable thing owned by whoever deposited it, and that dumps created before the Mineral and Petroleum Resources Development Act commenced on 1 May 2004 are not "minerals" or "residue" under that Act at all: they are private property outside the state's custodianship. The legislature answered with the Amendment Act of 2008, redefining residue stockpiles and deposits and adding a section 42A, but that Act commenced only on 7 June 2013 and, on the reading the profession has settled on, did not capture historic dumps. As one firm summarised it in November 2024, the Act "does not apply to any tailings dumps established prior to 1 May 2004", and processing them requires no mining right, only environmental authorisation. A second attempt, the Amendment Bill of 2013, tried to bring the historic dumps in with a two-year window and a permit regime; it was withdrawn in 2018. After the Jagersfontein tailings failure of 11 September 2022 the Minister called the Ataqua judgment "dangerous" and "judicial overreach" that had "crippled" his department's jurisdiction over tailings dams. A third attempt is now on the table. The draft Mineral Resources Development Bill, published for comment on 20 May 2025, defines "historic residue stockpiles"; provides in a new section 42A that they "belong to owners thereof" for two years from commencement; requires owners inside a mining area to incorporate them into the right and owners outside to apply for one; deems registered stockpiles regulated under the Act; and reverts non-compliant ones to the state. On 19 May 2026 the Department told Parliament the Bill was with the Chief State Law Advisor for certification, with introduction "anticipated" in the second quarter of the financial year, July to September. The same draft adds permits for artisanal and small-scale mining in new sections 7A, 9A and 27A; comments on it closed on 13 August 2025. That quarter passed without an introduction: on 7 October 2026 the Minerals Council told the Joburg Indaba that consultations on the Bill had "moved into" NEDLAC, and by 18 October 2026 it had not been tabled. The Department's deputy director-general, Ntokozo Nzimande, told the same Indaba that government and industry were "at one in almost everything" on the revised text; the treatment of the historic dumps was reported as the point still unresolved.That record governs the second life. The surface sand holds some 1,600 tonnes of gold, worth about 214 billion dollars at the 16 October 2026 close of US$4,165 an ounce, about two-thirds of it on nobody's reserve or resource statement. On the law as it stands, it is the private movable property of depositors who in many cases no longer exist: outside the minerals statute, processable without a right, but transferable only through a title chain the deeds office cannot always produce. The 2025 Bill would pull the dumps into the Act by deeming and threaten reversion for non-compliance. In effect that nationalises the uncounted ounces by a two-year deadline, and it is the one design certain to freeze every liquidator's estate on the belt for as long as the resulting litigation lasts. The remedy runs the other way. It leaves the dumps out of the state's custody and vests what is recovered from them, cleanly, in whoever recovers it under licence, with the depositor's residual title extinguished by the remediation itself. That is the second of the clauses in Section VII, and none of the three previous attempts wrote it..Since 2007 a dump poured before May 2004 has been private movable property outside the minerals Act. A 2008 amendment missed it, a 2013 bill was withdrawn, and the 2025 bill would nationalise it by deadline. None of the three vests what is recovered in the one who recovers it..IV. Section 43, read by the courts.The arithmetic of the closure certificate is known: 803 certificates in the six years to 2016, of which 84 were for mining rights and twenty-seven, three per cent of the total, went to large-scale mines. A university study of 2024 found that no large-scale mine in the country had ever been granted full closure. Since that count, the courts have read section 43 twice, and both readings tighten the cage. In Harmony Gold against the Regional Director, decided by the Supreme Court of Appeal on 4 December 2013, a 2005 directive under the National Water Act requiring four companies to share the cost of pumping at the Margaret Shaft was held to bind Harmony after it had sold the mine to a successor in 2008; otherwise, the court said, a polluter could "walk away with impunity". In Ezulwini Mining against the Minister, decided on 30 May 2023, the same court held that the holder of a right to the Cooke 4 shaft "remains responsible for any environmental liability, pollution, ecological degradation, the pumping and treatment of extraneous water" under section 43(1) until a closure certificate is issued, and could not stop pumping without one. The liability lasts until a certificate is issued, and the certificate is not issued because the liability has no end. Section 24R of the environmental statute then keeps the holder liable for latent and residual impacts even after a certificate, so that a certificate, when it comes, does not end the liability either.The deadlock has one consequence for the drafting. Any clause that vests a remediated resource in a remediator must also decide what happens to the section 43 liability of the ground it came from, or the remediator inherits an obligation the courts have treated as open-ended and untransferable. The 2013 Harmony judgment says the original polluter's obligation survives a sale; the 2023 Ezulwini judgment says it lasts until closure is certified; section 24R says it survives the certificate. A clause providing that "the remediator's liability for the ground it has remediated is limited to the provisioned figure and the original holder's is extinguished to the same extent" therefore decides whether the remediator starts a second life or becomes a second defendant..Twice read by the Supreme Court of Appeal, section 43 now means that liability survives a sale and lasts until closure is certified; section 24R keeps it alive after the certificate. Vest the resource without capping the liability, and the remediator becomes the next defendant..V. Section 24PA, unregulated since 2023.The reform the money needs is already law. The National Environmental Management Laws Amendment Act of 2022, which commenced on 30 June 2023, inserted a mining-specific section 24PA into the environmental statute. On the profession's reading at the time, it permits the holder to draw down its financial provision annually for up to ten years before final closure, and it adds insurance products and parent-company guarantees to the permitted vehicles. That is the mechanism that would let the trust half of the hundred billion fund concurrent remediation instead of waiting for a closure that never comes. It has never taken effect, because the financial-provisioning regulations that would implement it have been redrafted four times since 2017 and never finalised. Drafts were published on 10 November 2017, in May 2019, and on 27 August 2021 (proposing, among other things, to bar bank guarantees for the latent-impact component and to move cash into a ministerial trust), and again in the winter of 2022, with comments closing on 25 August and closure plans required to cover post-closure socio-economic development. The compliance deadline for rights granted before November 2015 was deferred from 19 February 2019 to 19 February 2020, to 19 June 2021, to 19 June 2022, to 19 September 2023 and, in February 2024, to "a date to be published in the Gazette". No date had been published by October 2026, and no new draft has appeared since 2022. The Department is "planning another round of consultations". The draft national mine-closure strategy, gazetted for comment on 21 May 2021, is "still under consultation" five years later.Two adjacent reforms bear on the streams, and only one has moved. The same 2022 amendment was meant to take residue stockpiles and deposits out of the Waste Act, but those provisions were among the sections excluded from commencement in June 2023. A dump is therefore still waste that needs a waste management licence, which is the wrong category and the reason any plan to sell gypsum and metals from the treatment plants still turns on a waste licence. The Electricity Regulation Amendment Act of 2024, in force since 1 January 2025, has opened the power market to multiple sellers and a transmission system operator, so shaft storage is now a question of bid-window design rather than a statutory bar. The Critical Minerals and Metals Strategy published on 12 May 2025 names secondary sources, including rare earths from fly ash and reclaimed tailings, as strategic interventions, and a National Water Amendment Bill, approved by Cabinet in 2025, was introduced to the National Assembly on 21 January 2026 as B1-2026. Some of the pieces are in place. Four are missing: the regulation that switches on section 24PA, the commencement that takes residue out of the Waste Act, the clause that vests the recovered resource, and the clause that caps the inherited liability. Those four are the remedy..The reform the money needs has been law since 30 June 2023 and has never been switched on: four draft regulations, repeated deferrals, and a compliance date set at "a date to be published"..VI. Washington, Brussels, Brisbane, and what each stopped short of.None of this drafting is exotic. Three jurisdictions have enacted parts of it in the last two years, and each stopped one clause short of the whole. The United States, with more than 100,000 abandoned hardrock mine sites on the Environmental Protection Agency's count and a clean-up bill the agency puts at "fifty billion dollars or more", signed the Good Samaritan Remediation of Abandoned Hardrock Mines Act on 17 December 2024, after attempts dating back to 1999. It creates a seven-year pilot of up to fifteen permits under which a remediator who did not cause the pollution is relieved of clean-water and Superfund liability for the site, which is the liability cap that clause four below writes. It does not vest the value: the Act allows legacy waste to be reprocessed, but "any proceeds will be redirected into cleanup". The first permit was issued only on 9 September 2026, twenty-one months after signature, to Trout Unlimited for the Bodie Mine in Washington state; the agency plans up to three in 2026, five to seven in 2027 and the rest in 2028, with a report to Congress due by 2032. The European Union's Critical Raw Materials Act, in force since 23 May 2024, obliges operators of extractive-waste facilities to assess the recovery of critical raw materials from their waste, and under Article 27 requires member states to build databases of closed extractive-waste facilities, with measures due by November 2027; an implementing regulation of 26 May 2026 left extractive waste off the Union's recovery-potential list on the ground that it is already covered by that article. That is the inventory clause, in law, with a date. It creates no right to recover from a facility one does not own. Queensland's financial-provisioning scheme, in force from April 2019 and amended on 1 October 2025, pools risk-rated annual contributions, now from 0.5 to 6.5 per cent of each holder's estimated rehabilitation cost, with the entry threshold raised to ten million Australian dollars, into a state fund that stands behind holders who fail and can, as it grows, pay for remediation of abandoned sites: the pooled-fund clause, working. A private remediator cannot draw on it, and the scheme is now under a targeted review, with terms of reference published on 22 July 2026, consultation closed on 30 September 2026 and a report to the Queensland government due in 2027, that lists the "recommercialisation of abandoned mines" among its questions. Chile's national geological service counts 795 tailings deposits, eighty-two per cent of them inactive or abandoned, under a national tailings policy since 2018, and Chile has not written the vesting clause either.Taken together, the four regimes amount to a single drafting brief. The American statute supplies the liability cap and shows how long a cautious agency takes to use one. The European regulation supplies the inventory and a hard date for it. Queensland supplies a pooled fund that has survived its first amendment and is now in its first review and is priced by risk rather than by negotiation. Chile supplies the scale of the problem in a country whose tailings count is public, which is more than South Africa can say of its derelict register. None of the four hands the remediator the thing he recovers, and the omission is deliberate: in each case the legislature chose to relieve the cleaner of blame without letting him keep the value, on the view that the value belonged to the public or to the original owner. South Africa cannot copy that choice, because its dumps were declared private property by a court, and because the money to remediate them has to come from what is inside them. The clauses below therefore borrow the cap, the inventory and the pool, and add the one clause the others declined to write.Each precedent shows one clause can be enacted and financed, and leaves the rest. Between them they show that every provision in the South African draft has been enacted somewhere, by a legislature with a legacy-mine problem and a treasury that could not pay for it. What sets the Witwatersrand apart is that it needs all of them at once, and that its provisions are already funded to a hundred billion rand, which none of the three jurisdictions can say..The United States capped the remediator's liability and kept the value for the clean-up. The European Union ordered an inventory and created no right to recover. Queensland pooled the money and left the private cleaner outside. The Witwatersrand needs all three, and it alone has a hundred billion rand already lodged..VII. Nine clauses, each aimed at a section.The remedy, drafted as clauses rather than principles, each aimed at a provision that exists, is as follows. One, the category: an amendment to the definitions in the minerals Act and the environmental statute creating "remediated resource", meaning any mineral, metal, water, energy, material or land recovered from a residue stockpile, residue deposit, mine water, mine void or mining-impacted land in the course of remediation under an approved plan, and providing that a remediated resource is not waste for the purposes of any Act. Two, the vesting: a new section, in place of the 2025 Bill's 42A, under which a remediated resource vests in the licensed remediator on recovery, and the depositor's title to the residue from which it was recovered is extinguished to the extent of the remediation, registrable against the property at the deeds office, so that Ataqua is answered by vesting rather than by deeming. Three, the licence: a single "remediation right" issued by one authority within a statutory period, carrying with it the environmental authorisation, the water use, the waste and the radiological registrations required for the approved plan: the combined licence the mine-water debate has long asked for, extended to every stream. Four, the cap: the remediator's liability under section 43 of the minerals Act and section 24R of the environmental statute for ground it has remediated is limited to the provisioned figure at the date of the right, and the original holder's liability is extinguished to the same extent. This is the Good Samaritan clause, with the value kept. Five, the drawdown: the regulations under section 24PA that let a holder draw on its trust fund annually, against certified concurrent remediation, for the ten years the section already contemplates, which switches on the reform already legislated. Six, the pool: bank guarantees converted, on renewal, into contributions to a pooled fund on the Queensland model, from which derelict-site remediation rights may be funded and against which the state may issue treat-and-supply mandates, which puts the guarantee half of the hundred billion to work. Seven, the network: a remediated resource that is water, power or storage has a right of access to the public network at a published tariff under the 2024 electricity Act and the water Act: the feed-in clause. Eight, the register: the derelict-and-ownerless database, the residue ownership records and the provisions by holder published, with standing for any licensed remediator to apply for a right over a derelict site. This is the inventory clause, and it ends the "supposed security reasons". Nine, the fairness clause: every remediation right carries a social plan for the communities on and beside the residue, with first refusal on the land released and the jobs created, on the tenure mix of the one housing project that has completed the loop, because a second life carried out over the heads of the people who breathed the dust of the first is the old model under a new name..Nine clauses, each aimed at a section that exists. Only the second has no precedent anywhere: the resource vests in the one who recovers it, and the depositor's title ends with the dump..VIII. What the sceptic rightly takes.The bear's first blow is capacity, and it is the heaviest: the Department that could not finalise one set of regulations in nine years, that has deferred a compliance date again and again, that keeps its own derelict register secret and issues twenty-seven mine closures in six years, is being asked to administer nine new clauses, a pooled fund and a public register. Conceded in full. That is why clause five, the switch on a section already law, comes first in the programme, and why clauses eight and three are drafted to take discretion away rather than add it: a statutory clock and a public register constrain the Department rather than adding to its work. The Good Samaritan precedent sets the pace here too: a statute signed in December 2024 issued its first permit in September 2026.The second blow is moral hazard. A cap on the remediator's liability and a release of the original holder's is an invitation to under-provision, walk away and let a "remediator" inherit a capped obligation the public then tops up. Conceded as the design risk, and answered by the pro-tanto drafting: the original holder is released only to the extent the remediator has actually remediated, against certification, and the cap is at the provisioned figure, so a holder that under-provisioned remains liable for the difference, which is the gap the Tormin case exposes. Then capture. A vesting clause hands the uncounted ounces to whoever gets to the register first, and the register will be gamed by the same houses that shed the liabilities. Partly conceded; the answer is clause eight's standing for any licensed remediator and clause nine's first refusal for the communities, which is the fairness the 2025 Bill's reversion clause does not provide. Then the Bill. The state has its own answer on the table, which is to deem the dumps into the Act and revert the non-compliant ones, and it will not adopt a private vesting clause that runs the other way. Conceded as the political fact, with the observation that the state's answer has failed twice before on this point, in 2008 and 2013, and that a deeming-and-reversion regime applied to liquidated estates and lapsed rights produces litigation, not remediation. And the money was never the constraint. Operators with margins near fifty-eight per cent, as the largest tailings retreater reported for the year to June 2026, do not need a trust fund to re-mine a dump; the streams that need the hundred billion are the derelict ones, and the derelict ones are the smallest. Partly conceded: the counted ounces are funded. But the derelict streams are where the dose is, where the shafts are open, and where the state's own liability sits, and a hundred billion lodged against the closure of operating mines is the only pool large enough to reach them..The bear takes the pace, the moral hazard and the politics. He leaves the anatomy of the money, the gap in the title, and a reform that has been law for three years without a switch..IX. Sequencing the key.The programme is an order of operations, because nine clauses tabled at once will wait for the tenth consultation. The switch comes first: finalise the section 24PA regulations (the drawdown, the vehicles, the certification of concurrent remediation) before anything else, because the section is law, the drafts exist, and the compliance date can be published in a month. Next the register: publish the derelict-and-ownerless database, the residue ownership records and the provisions by holder, on the European timetable if not sooner, because nothing can be planned on ground whose owner is secret. Then the amendment: substitute the vesting clause for the 2025 Bill's section 42A before the Bill reaches Parliament, so that the third attempt at the dumps does not fail like the first two. Then the cap and the pool together, because a remediation right without a liability cap will not be applied for and a cap without a funding pool will not be honoured. And then the pilot: one derelict dump on the Central Rand, one treatment-plant concession, one closed shaft, each under a remediation right issued on a statutory clock, with the fairness clause attached and the before-and-after published, so that the statute has a working record before it is widely applied.The programme's cost is small. The regulations cost nothing but a signature; the drafts have been through four rounds and the Department's own budget vote records the officials already assigned to them. The register costs a database the Department already keeps and a decision to stop keeping it secret; the European Union requires the same kind of inventory of its member states by November 2027. The amendment costs a substitution of one section in a Bill already published. The cap and the pool cost the one thing that is not free, which is the actuarial work to set the capped figure for each site and the governance of a pooled fund. Here Queensland's scheme is the working model: a risk-rated contribution of between half a per cent and, since October 2025, six and a half per cent of each holder's estimated rehabilitation cost, administered by a scheme manager with a published annual report, from which the state funds the rehabilitation of sites whose holders are gone. On a hundred-billion provisioning stock, a levy of half a per cent is five hundred million rand a year, more than three times the state's entire derelict budget and close to what it now spends neutralising the water in all three Witwatersrand basins. The pilots cost what pilots cost. A derelict dump on the Central Rand is a twelve-month reclamation at a treatment price that its own gold pays for; a treatment-plant concession is a contract rather than a capital line; a shaft lease is a survey and a legal opinion. None of it is free, but all of it is cheaper than the water bill, which rises to 668 million rand by the end of the current medium-term framework whether or not a single clause is written.The usual account never supplies a timetable either. The switch can be gazetted before the end of the 2026/27 financial year, because the compliance date has stood at "a date to be published" since the last deferral and publication is the whole act. The register can be public within twelve months, because the Auditor-General has already audited it. The amendment must be made before the 2025 Bill's second reading, which is unlikely before 2027 even if the Bill emerges from NEDLAC and is introduced as the Department intends; after that, the vesting clause becomes a new bill rather than a substitution, with a five-year path instead of a one-year one. The cap and the pool are a 2027 amendment to the financial-provisioning regulations rather than to the Act, and regulations can be made in a year. The pilots run from the day the first remediation right is issued, and the first right can be issued under the existing section 24PA once its regulations are in force, because on its wording the section already contemplates a "person" other than the holder undertaking concurrent rehabilitation. Every step falls inside three years, and none needs a new Act. Aiming the clauses at sections that already exist is what makes that possible..Every step is inside three years and none needs a new Act. A half-per-cent levy on the provisioning stock is five hundred million rand a year, and the water bill rises to 668 million whether or not a clause is written..X. A clause can be rewritten.The goldfields' second life has been argued stream by stream, and each stream ended at a clause. The clauses are not laws of nature. They were written in 2002, 2004, 2013, 2015 and 2022, and read by a court in 2007, by people answering other questions, and none of them was asked what the law should say to a person who wants to clean a thing and keep what the cleaning yields. Today the answer is that such a person may not own it with certainty, inherit its obligation at a known figure, draw on the money lodged for it, sell what it makes into the network, or even find out who owns it. A hundred billion rand sits in instruments the law reserves for a closure the law prevents. Fifty-one million ounces, worth about 214 billion dollars at the 16 October 2026 price, sit on dumps a court put outside the Act in 2007. And a reform that would move the money has been on the statute book since June 2023, waiting for a regulation deferred to a date no one has published.I am not a lawyer, and these clauses are an operator's draft, offered for improvement by people who are. But in negotiations with liquidators, landowners and regulators over a dump, what ends the meeting is rarely the assay. It is the question of who owns the residue and who carries the ground. That question is the whole of environmental arbitrage as a matter of law: the same sand is a liability on one ledger and an orebody on the other, and until the statute says who may stand between the two, the difference belongs to nobody. The cage is made of clauses, and so is the key. What separates a country that mines its dumps, turns its shafts into batteries, sells its mud and builds on its belt from one that fences all four and pays more than 500 million rand a year to neutralise the water beneath them is nine paragraphs of statute and one gazetted date. Everything else in the second life has been costed, audited and, in three cases, built. The law is the last thing waiting, and the cheapest..THE CAGE IS MADE OF CLAUSES: A HUNDRED BILLION RAND THE LAW RESERVES FOR A CLOSURE THE LAW PREVENTS, AND DUMPS A COURT PUT OUTSIDE THE ACT IN 2007. SO IS THE KEY.One switch that is already law, one vesting clause no attempt has written, one cap with the value kept, one pool, one register. Nine paragraphs and a gazetted date..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.Support South Africa's bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here.

Dr Duarte da Silva: The keys to the cage

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