CASE NO.:S?fL 7~/;;{o /~

IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF

MPUMALANGA

HELD AT L YDENBURG

In the matter between:

THE STATE

and

SAMANCOR CHROME LIMITED

(Duly represented by Wessel Erasmus)

PLEA AND SENTENCE AGREEMENT IN TERMS OF SECTION 1 05A OF THE CRIMINAL PROCEDURE ACT NO. 51 OF 1997, AS AMENDED

WHEREAS:

1. The Accused is a registered corporate body in terms of the Companies

Act 71 of 2008 as amended, trading as Samancor Chrome Limited and

as such a corporation within the meaning of section 332(1) of the

Criminal Procedure Act 51 of 1977;

2. Wessel Erasmus, the Chief Financial Officer ("CFO") and employee of

the Accused is duly authorised to enter into a formal Plea and Sentence

Agreement (Annexure "A"); ri ~ . ,·1 ~9

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3. The Accused is charged with the offences of:

3.1 Count 1: Contravening section 20( 1 )(a) of the Environment

Conservation Act 73 of 1989, read with Sections 1, 29(4) of the said

Act ("the ECA") and Section 34(4) of the National Environmental

Management Act 107 of 1998 (with reference to Schedule 3)also read

with Government Notice 1196 published in the Government Gazette

15832 of 8 July 1994 and further read with Section 332(1) of the

Criminal Procedure Act 51 of 1977

3.2 Count 2: Contravening section 20(6) of the Environment Conservation

Act 73 of 1989, read with Sections 1, 20( 1) and 29( 4) of the said Act

("the ECA") and further read with Section 332(1) of the Criminal

Procedure Act 51 of 1977

3.3 Count 3: : Contravening section 151 (1 )(i) read with sections 1 and

152(2) of the National Water Act 36 of 1998, and read with sections 90

and 250(1) of the Criminal Procedure Act, No. 51 of 1977

4. Advocate Mashudu Jeffrey Nethononda has, as required by section 1 05A

of the Criminal Procedure Act, been authorised by the National Director

of Public Prosecutions to enter into the Plea and Sentence Agreement

and to conduct proceedings in Court on behalf of the State in connection

with this Plea and Sentence Agreement. A copy of the authorisation is -~

I attached hereto as (Annexure "B") · .

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5. The accused represented by Mr Willem Le Roux of Edward Nathan

Sonnenbergs Inc., reached an agreement in respect of a plea of guilty as

well as a just sentence to be imposed,

6. This plea and sentence agreement has been negotiated in consultation

with the immediate supervisor of Adv. M.J Nethononda, being Mr V.

Nemaorani, a Deputy Director of Public Prosecutions who agrees with

the terms of this plea and sentence agreement,

AND WHEREAS THE ACCUSED:

7. As represented by Wessel Erasmus, the CFO and employee of the

Accused , before entering into this Plea and Sentence Agreement, has

been fully informed as follows:

7.1 That the Accused has the right to be presumed innocent until it has,

beyond reasonable doubt been proven to be guilty;

7.2 That the Accused has the right to remain silent and not to testify during

the proceedings;

7.3 That the Accused has the right not to be compelled to give self­

incriminating evidence;

7.4 That the Accused is not obliged to enter into this Plea and Sentence

Agreement, but that should it do so, the contents of the Plea and --~· 1

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find it guilty in terms of the provisions of the Plea and Sentence

Agreement, and sentence it in terms thereof,

a. Admits having entered into this Plea and Sentence Agreement freely and

voluntarily, while being of sound and sober senses and without having

been duly influenced thereto;

9. Acknowledges that it has been made aware that this Plea and Sentence

Agreement cannot bind the Court not to exercise its discretion to make a

specific order or conduct a specific inquiry;

AND WHEREAS:

10. The Prosecutor has complied with the provisions of section 105A(1)(b)(i),

(ii) and (iii) of the Criminal Procedure Act;

11 . The State has properly consulted in terms of section 105A(1)(b)(i) and (ii)

with the Investigating Officer in this case, namely Ms Tsholo Matlou from

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the Office of Environmental Affairs, on the terms of this Plea anf} Sentence Agreement, ~nuexure "C'') QvL!ip ,£.. ·~-

12. The State has properly, in terms of section 105A(1)(b)(iii) consulted with

the Complainant in this matter and has given him an opportunity to make

representations regarding the contents of this Plea and Sentence

Agreement, and he has agreed to the provisions contained herein, I

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13. The Accused admits guilt in respect of the charges so mentioned herein,

and pleads guilty thereto on the basis as set out below, and the State is

prepared to accept such plea of guilty.

14. Therefore the State and the Accused agree as follows in respect of the

plea of guilty and a just sentence:

15. The Accused admits all the facts in relation to the charges as set out

below.

PLEA OF GUll TY AND ADMISSIONS

16. Count 1

16.1 Mr Wessel Erasmus admits that he has the required authorisation from

the Accused to submit this plea of guilty.

16.2 The Accused admits that it is guilty of contravening section 20(1) of

/ the Environment Conservation Act 73 of 1989 read with sections 1, j

I 29(4) of the said Act ("ECA") and Section 34(3) & (4) of the National 1

Environmental Management Act 107 of 1998 (with reference to

I Schedule 3) and also read with Government Notice 1196 published in 1

. I the Government Gazette 15832 of 8 July 1994 and further read with 1

Section 332(1) of the Criminal Procedure Act 51 of 177

16.3 The Accused admits that upon or during August 1997 to march 2008, /

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at or near Steelpoort, in the Regional Division of Mpumalanga, it/ ( t/ !Y(t tL w /

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unlawfully and intentionally established and/or provided and/or

operated a disposal site without a permit issued by the Minister.

17. Count 2

17.1 Mr Wessel Erasmus admits that he has the required authorisation from

the Accused to submit this plea of guilty.

17.2 The Accused admits that it is guilty of contravening section 20(6) of

the Environment Conservation Act 73 of 1989 read with sections 1,

20(1) and 29(4) of the said Act ("ECA") and further read with Section

332( 1) of the Criminal Procedure Act 51 of 177

17.3 The Accused admits that upon or during August 1997 to march 2008,

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I at or near Steelpoort, in the Regional Division of Mpumalanga, it /1

unlawfully and intentionally established and/or provided and/or

operated a disposal site without a permit issued by the Minister.

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17.4 The accused admits that during August 1997 to February 2005 and at ( d /1

or near Steelpoort at its Tubatse Ferrochrome plant, certain TC)t .J~"<_~·.Q...' /

employees and managers of the accused allowed dus_t from the bag~ A 1

~~ which dust contained chrome and hazardous substance, to 1

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be disposed, within the fenced parameters of the plant, without a 1

I waste permit. The accused admits that such conduct occurred in the 1

course of the employment of such persons and that such conduct was

unlawful and negligent.

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17.5 Charges 1 and 2 relate firstly, to the operation of a disposal site

without having a permit and secondly for disposal of waste. At the time

referred to in the charges the shareholding in the accused was held by

Anglo South Africa Capital Limited and BHP Billiton SA Limited ("BHP

Billiton"). In terms of a management agreement between these two

companies, the Tubatse Ferrochrome Operations were managed by

BHP Billiton. Management of the operations by BHP Billiton ceased in

2005 when Kermas Limited ("Kermas") acquired the total shareholding

in the accused. Prior thereto, the accused had taken certain remedial

measures to prevent contamination. When Kermas took over the

management and control of the accused, it expedited the completion

of such remedial measures. The current arising of bag house dust

referred to in the charges, had been disposed of during the period of

approximately August 1997 to 2000 in dedicated unlined areas. The

accused admits that operating a disposal site without a permit and

secondly disposal of waste in an unauthorised waste disposal site is

unlawful and punishable by law.

17.6 During the period of approximately 1998 to 1999, the bag house dust

facility, where the bag house dust had been placed previously, was

capped in order to prevent any entry of water and any resultant

leaching of any hazardous substance into the ground. These

measures had been discussed with, and approved by, the Department

of Water Affairs.

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17.7 Furthermore, part of the remedial measures also included the

establishment of a lined hazardous waste disposal facility, the

particulars and the design discussed with, and approved by, the

Department of Environmental Affairs. Smaller on site dumps,

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~containing bag house:' were moved to the aforementioned lined facility I r.... I

after construction was completed. From 2000 to 2005, current arising i

of bag house dust were disposed of into the lined disposal facility.

17.8 The dump was prepared between 2005 and 2010 and the lined facility i I I

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was decommissioned and capped in December 2010 and is regularly

inspected.

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against the Accused due to lack of evid nee and ~,1 the State does not inten to pursue the charge in the near ure because '

#I chain evidence was not folio ed in this matter,

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19. Charge ~ ( ---::)

19.1

19.2

The following charge is withdra 4 Count 3 - : Contrave ng section 151 (1 )(i) r d with sections 1 and

152(2) of the Nati al Water Act 36 of 1998, and

(with referen e to Schedule 3) of the National Environmental

nt Act 107 of 1998 and further read with secti

the C( inal Procedure Act, No. 51 of 1977 /

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SENTENCE

20. Mitigating Circumstances

20.1 It is recorded that the State and the representative of the Accused

have had extensive negotiations and discussions with regard to the

charges against the Accused and have considered the following

factors:

20.1.1.1 The length of the trial should the Accused plead not guilty to the

charges. By pleading guilty the Accused drastically curtailed

criminal proceedings. Had the Accused pleaded not guilty, the

trial would have run for several weeks;

20.1.1 .2 The expense to which the State and the Accused would be put

by such a trial, which would be a lengthy one;

20.1.1.3 The burden of the prosecution and the Court of being engaged in

such a lengthy trial;

20.1.1.4 The Accused has fully co-operated with the Prosecuting Authority

in this matter and has offered full assistance and co-operation to

the authorities, which is in the interests of society and law

enforcement agency;

20.1.1.5 The interest the State has in securing a conviction on the

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20.1.1.5 The interest the State has in securing a conviction on the

charges against the Accused, such interest having a number of

purposes which are (a) the interests of securing a conviction

against the Accused of the offences which it hereby pleads guilty

to, (b) the interests to demonstrate to the community that such

contraventions will be detected and prosecuted, (c) the interests

to demonstrate that environmental compliance and sustainable

mining is key to South Africa's future, (d) the interest to

demonstrate that environmental legislation applies equally to all

persons and the mining industry, in South Africa, (e) the interest

to demonstrate that the Constitutional rights as in Section 24 of

the Constitution of South Africa will be protected.

21 . Position of the Accused

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21 .1.1.1

21 .1.1.1.1

21 .1.1.1.2

21 .1.1.1 .3

The following is common cause in relation to the Accused:

The Accused is a first offender;

The Accused has admitted guilt, thereby showing remorse;

The Accused has contributed to the economic and social

development of the Steelpoort community and other

communities through its mining operations; I I

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21 .1.1 .1.5

21 .1.1.1 .6

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The Accused has historically provided employment to

employees in the Steelpoort area and/or the province of

Mpumalanga,

The Accused has obtained all necessary authorisations;

The Accused commits to comply with its obligations in terms of

the various environmental and related authorisations granted

to it.

22. Compliance with the

22.1.1.1 that the sources

groundwater were th

unlined dumping facilitie . Contaminaf n of the groundwater was

22.1.1.2

already been imple ented in res ect of the identification and

treatment of areas. Kermas

he remedial measures which included, inter alia,

d operation of the water tre ment plant to treat any I

contam· ated groundwater with ferrous chlo ide. I

I 22.1.1 .3 D ring the period 2000 to 2004, a wa r management

investigation was conducted. In terms of the

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estimated extent of the groundwater pollution was

predicted, as well as the possible migration

on, inter alia, the Steelpoort

investigation and management pi was essential to confirm that

the appropriate additional

attempt to treat any co minated groundwater. In 2004, and as

part of the inves · ation conducted by the accused, it was

identified t/ e borehole of Steelpoort Primary School had

been co7minated. Measures were taken to provide the school

with a p.ortable water source.

23. Aggravating Circumstances

23.1 The following are common cause in aggravation of sentence:

23.1.1 Section 24 of the Constitution of South Africa provides for the rights

of current and future generations to have the environment

protected, to have an environment that is not harmful to health or

wellbeing, to prevent ecological degradation and pollution, and to

secure ecologically sustainable developments;

23.1.2 The interests of current and future members of society;

23.1.3 The charges are of an environmental nature which are, in that

respect, of a serious nature;

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23.1.4 Compliance with approved environmental authorisations is of

crucial importance in order to secure the future and the environment

through regulated and sustainable development.

23.1.5 THE AGREED SENTENCE

23.2 The parties further agree that should the Accused be convicted of the

abovementioned offences in terms of this Plea and Sentence

Agreement, that the Accused be sentenced as follows with the added

conditions:

23.3 That in terms of section 29(4) of the Environment Conservation Act 73

of 1989 read with section 280 of the Criminal Procedure Act 51 of

1977 count 1 and 2 are taken together for purposes of sentence and

the accused is sentenced to a fine of R200 000.

23.3.1.1 Having regard to the provisions of section 34(3) of the National

Environmental Management Act 107 of 1998 ("NEMA") with

reference to Schedule 3, and section 297(1 )(a)(i)(aa) of the

Criminal Procedure Act 51 of 1977 the accused shall pay an

amount of R700 000 00 (Seven hundred thousand Rand) before

or on 23 November 2014. The said amount of R700 000 00

(Seven hundred thousand Rand) be paid into the account of the

Department of Environmental Affairs who must in conjunction

with Steelpoort Primary School liaise with the Department of

Education to develop suitable environmental initiatives for the

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benefit of Steelpoort Primary School. The Department of ; ~I

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Environmental Affairs must keep proper records on the utilisation

of the said funds and that it be audited in terms of the Public

Finance Management Act 1 of 1999.

Having regard to the provisions of section 34(1) of the National

Environmental Management Act 107 of 1998 ("NEMA"), with

reference to Schedule 3 section 297(1 )(a)(i)(aa) of the Criminal

Procedure Act 51 of 1977 the accused shall pay an amount of R 1

000 000 (One million Rand) before or on 23 November 2014.

The said amount of R1 000 000 (One million Rand) be paid into

the account of the Environmental Management Inspectorate of

the Department of Environmental Affairs for the purposes of the

proper execution of their duties, environmental rehabilitation and

enforcement training which entity must keep proper records on

the utilisation of the said funds and that it be audited in terms of

the Public Finance Management Act 1 of 1999.

Account Holder: Department of Environmental Affairs

Bank: ABSA

Account Number: 1044240072

Branch code: 632005

Reference number: Burgersfort CAS 1 07/03/2008 : I

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UNDERTAKING BY THE ACCUSED

! I I ~ The accused hereby undertakes to endeavour to take all i I

measures within its power to prevent contamination of the I :. I I

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environment by its activities and to continue to take the remedial

measures which are being taken by it in order to remove such

contamination which has occurred in the past. The Accused

further undertakes to review the progress made by it from time to

time in consultation with the Department of Water Affairs and

Environmental Affairs and to improve remedial measures, where

appropriate.

In terms of section 34(4) of the National Management

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Ill Environ menta~ Act 107 of 1998 ("NEMA"), the accused is

ordered to pay an additional amount of R100 000.00 (One I / I

hundred thousand rand) for co~s i_ncurred by_ the_ . P.ublic 1.t 1

!1 _ /J4f' "'""~ o-[1 l::;'YI_v , '"·-'·~ A-OO'c,J':> ~0-W

prosecutor to tAe--elerk of the court, Lydenbuf9 for the benefit of ,

the NPA. (l r-~x:

i SIGNED AT L YDENBURG ON THIS THE 05 NOVEMBER 2014 II

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ADV. M.J. NETHONONDA

STATE ADVOCATE

' I HEREBY confir~ that the prosecutor Adv. M.J. Nethononda consulted with /

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<~s- his--su-peHvis~c ·on -tl:le_Gp~tents of the agreement. /I

~~ ==-=-·;·-~=~~~-~--~~~~-~ -- ~~-~ll:\~, J) I i ~ V. NEMAORANI

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS

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LIMITED (HEREINAFTER REFFERRED AS

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Isenschmid, Elize {SCR)

From: Sent To:

Cc: Subject:

Attachments:

Isenschmid, flize (SCR) 16 October 2014 10:02 AM Youness, Amre UMR) (amre@imrintemational.com); Schalamon, Jurgen {SCR); Gounden, Sivi (holgoun) (sivi.gounden@holgoun.co.za); Gounden, Vanessa (holgoun) (vanessa.gounden@holgoun.co.za) Erasmus, Wessel (SCR) Round Robin Resolution in respect of Tubatse environmental plea and sentence agreement Round Robin resolution Plea and Sentence agreement 16 10 14.docx

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Dear Directors I The company requires a board resolution authorising Wessel Erasmus to settle and sign the criminal charges brought against the company in respect of the Tubatse environmental matter. A plea and II sentence agreement needs to be entered into in order to settle the charges. The salient points of the I agreement are contai ned in the resolution.

Please find attached the round robin resolution for your consideration and signature.

Kind regards,

Elize Isenschmid Group Legal Manager and Company Secretary CORPORATE samancor~ !4?iPNW:JB c·._.J~:hl:_,'!i~"!.~.: .. ~-:~ . ...:··::...2.·:-·_-J +27 11 245 1103 1 c::J +27 86 267 3407 I @ +27 82 546 9590 I &JI Ellze.Isenschmld@SamancorCr.com

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ROUND ROBIN RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF

SAMANCOR CHROME LIMITED

Registration Number: 1926/008883/06

("the Company")

APPROVAL TO SETILE THE CRIMINAL CHARGES BROUGHT AGAINST THE COMPANY

REGARDING THE TUBATSE FERROCHROME ENVIRONMENTAL MATIER

Further to the above matter discussed at the previous board meeting the Company has come to an

arrangement with the State with regards to the matter and has entered into a Plea and Sentencing

Agreement in terms of Section 105A of the Criminal Procedure Act No.51 of 1977, as amended.

In terms of the agreement the Company will enter a plea of guilty on Count 1 and 2 and not guilty on

Count 3.

The agreed sentence is a Total fine of R2 000 000.00 (Two million rand), made up of R200 000.00 (two

hundred thousand rand) to be paid to the Clerk of the Lydenburg Criminal Court, R1 000 000.00 (one

million rand) to be paid to the Department of Environmental Affairs for the benefit of the Steelpoort

School, R700 000.00 (seven hundred thousand rand) to be paid to the Department of Environmental

Affairs, and R 100 000.00 (one hundred thousand rand) to be paid to the National Prosecuting Authority.

RESOLVED

The board of directors of the Company hereby resolves and authorises Wessel Erasmus, who has been

the Company representative during the Criminal Case, to enter into, sign and execute the Plea and

Sentence Agreement with the State.

Name: Amre Youness

Designation: Director

Date:

-----------------Name: Sivandran Gounden

Designation: Director

Date:

on: Director

/~ &c(2o117

Name: Vanessa Gounden

Designation: Director

Date:

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ROUND ROBIN RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF

SAMANCOR CHROME LIMITED

Registration Number: 1926/008883106

("the Company")

APPROVAL TO SETTLE THE CRIMINAL CHARGES BROUGHT AGAINST THE COMPANY

REGARDING THE TUBATSE FERROCHROME ENVIRONMENTAL MATTER

Further to the above matter discussed at the previous board meeting the Company has come to an

arrangement with the State with regards to the matter and has entered into a Plea and Sentencing

Agreement in terms of Section 1 05A of the Criminal Procedure Act No.51 of 1977, as amended.

In terms of the agreement the Company WJ11 enter a plea of guilty on Count 1 and 2 and not guilty on

Count3.

The agreed sentence is a Total fine of R2 000 000.00 (Two million rand), made up of R200 000.00

(two hundred thousand rand) to be paid to the Clerk of the Lydenburg Criminal Court, R1 000 000.00

(one million rand) to be paid to the Department of Environmental Affairs for the benefit of the

Steelpoort School, R700 000.00 {seven hundred thousand rand) to be paid to the Department of

Environmental Affairs, and R100 000.00 (one hundred thousand rand) to be paid to the National

Prosecuting Authority.

RESOLVED

The board of directors of the Company hereby resolves and authorises Wessel Erasmus, who has

been the Company representative during the Criminal Case, to enter into, sign and execute the Plea

and Sentence Agreement with the State.

Name: Amre Youness

Designation: Director

Date:

Name: Sivandran Gounden

Designation: Director

Date: 11-/lo/lol!.j

Name: Jurgen Schalamon

Designation: Director

Date:

?t::: Gounden

Designation: Director

Date: l':r jt o J l 011.4

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From: Sent:

Amre Youness <amre@imrinternational.com>.

31 October 2014 08:10 PM I To: Isenschmid, Elize (SCR); Schalamon, Jurgen (SCR); Gounden, Sivi (holgoun); I

Cc: Subject:

Gounden, Vanessa (holgoun) I Erasmus, Wessel (SCR) Re: Round Robin Resolution in respect of Tubatse environmental plea and sentence agreement I

Dear Elize,

Please consider this email as my tempora;y signed authorization. I have signed the resolution but don't have a r~ x or

scanner at the moment.

Regards,

.ll.rnre

From: Isenschmid, Elize (SCR) [mailto:Eiize.Isenschmid@SamancorCr.com]

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Sent: Thursday, October 16, 2014 09:02AM I To: Amre Youness; Schalamon, JOrgen (SCR) <Jurgen.Schalamon@SamancorCr.com>; Gounden, Sivi (holgoun) <sivi.gounden@holgoun.co.za>; Gounden, Vanessa (holgoun) <vanessa.gounden@holgoun.co.za> ' I Cc: Erasmus, Wessel (SCR) <Wessei.Erasmus@SamancorCr.com> Subject: Round Robin Resolution in respect of Tubatse environmental plea and sentence agreement

Dear Directors I The company requires a board resolution authorising Wessel Erasmus to settle and sign the crimir.al charges brought against the company in respect of the Tubatse environmental matter. A plea and sentence agreement needs to be entered into in order to settle the charges. The salient points o the agreement are contained in the resolution.

Please find attached the round .robin resolution for your consideration and signature.

Kind regards,

Elize Isenschmid Group Legal Manager and Company Secretary CORPORATE

;;§"'

samancor~~ ::1 .Il ~- -- .. . . . . . .

d' "·27 .11 245 11.03 I B +27 86 267 3-l07 I B +27 82 546 9590 I ~ Elize.Isenschmid@SamancorCr.com

goGreen -Please consider the envi;·onmcnt bef.:;re priming th;s E-Hail

The information in this email may be confidential, legally privileged or otherwise. It is intended solely for the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipiept, any disclosure, copying, distribution or any action taken or omitted in reliance on it, is prohibited and mat be unlawful. Whilst all reasonable steps are taken to ensure the accuracy and integrity of information anr data transmitted electronically and to preserve the confidentiality thereof, no liability or responsibility whatsoever is accepted if information or data is, for w~atever reasons, corrupted or does not reach its

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NATIONAL PROSECUTING AUTHORITY South /\(:·ica

AUTHORISATION IN TERMS OF SECTION 105A(1)(a) OF THE CRIMINAL PROCEDURE

ACT, 1977 (ACT 51 OF 1977)

I, MENZI SIMELANE, National Director of Public Prosecutions, hereby in terms of section

105A(1)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) authorise the following

prosecutors to negotiate and enter into plea and sentence agreements in criminal

proceedings within their areas of jurisdiction:

(a) Any District Court Prosecutor on salary level LP4 and any prosecutor on a higher

salary level in respect of matters in the District Court: Provided that a prosecutor on

salary level LP4 must negotiate and conclude the agreements in consultation with his

or her immediate supervisor.

(b) Any Regional Court Prosecutor on salary level LP6 and any prosecutor on a higher

salary level in respect of matters in the Regional Court: Provided that a prosecutor on

salary level LP6 must negotiate and conclude the agreements in consultation with his

or her immediate supervisor.

(c) Any Senior State Advocate on salary level LP9 and any prosecutor on a higher salary

level in respect of matters in the High Court.

This authorisation is subject to the policy directives on plea and sente:nce agreements issued

from time to time by the National Director of Public Prosecutions.

Given at Pretoria on this ;2_~ day of s~ 2011.

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