The Common Law
Laws made by national, provincial and local government
Sectoral laws relating to the Environment
Ways to resolve environmental disputes
Solving environment disputes without going to court
Solving environmental disputes in the courts
Best action to take when dealing with environmental issues
Parts of this chapter have been substantially adapted from Environmental Law in South Africa by Prof. Jan Glazewski.
Certain information has also been taken from Environmental Laws of South Africa by P. W. G. Henderson.
The Constitution says that everyone has the right to a safe and healthy environment. What is the environment? It is a very broad concept and is generally understood to mean the surroundings within which we live, including the land, water and atmosphere of the earth; plants and animals; the relationships between these natural resources and animals, and the conditions that influence people’s health and well-being.
The quality of our environment affects all of us no matter where we live. When people abuse the environment, this affects us all. If water is polluted, if the air is full of smoke and chemicals, if food contains poisons, people (and plants and animals) are harmed. Many of the natural resources that we use or consume every day, such as water, wood, minerals and fish, will soon run out if we do not limit the rate at which we use them. All people have a responsibility to protect and use the environment so as to ensure that it will be protected for ourselves as well as future generations.
Many people believe that human needs are more important than the environment and believe that our major aim should be promoting economic growth and creating jobs while the green (environmental) agenda should take second place. Some people feel hurt or insulted when others show concern over endangered species like rhinoceros when children do not have enough to eat.
However, the environment is really the whole planet on which we live. Everything (winds, trees, animals, insects, people, etc) forms part of the living system of earth. Because the earth has been so badly exploited and not protected, this has created changes in weather patterns - there are more droughts and more floods, good farm land is turning into desert, temperatures are rising and most importantly, the ozone layer that should protect us from the dangerous rays of the sun has been damaged and is not functioning as effectively as it did before. All of this impacts on how people live and is the reason why the concept of sustainable development is becoming more and more important.
Sustainable development refers to development that can continue on an ongoing basis because it does not do irreversible harm to the environment. Development like this should balance social, economic and environmental concerns. This is not easy because these three concerns often compete with each other. For example, a sustainable forestry industry should allow a certain number of trees to be cut down and be used by people, but at the same time make sure that enough trees are left to be cut down and used in the future. This could be achieved by cutting down some of the trees and also planting new trees to replace those harvested, so that there will be trees in the years ahead. It is clear that sustainable development is an international issue. South Africa has signed and ratified certain important international agreements that aim to protect the environment.
There are three categories of law in South Africa that affect the relationship of people with the environment:
It is very important to understand that the different areas of law dealt with in this chapter do not work in isolation from each other. In other words, all of the law that we talk about works together. Therefore, the Constitution, the common law and legislation work together like a web of rules, which you can use to determine the rights that people enjoy and how best to protect those rights. For example, if a community is experiencing problems with smoke pollution, you may find that they are protected by the Constitution, the common law and by legislation all at the same time.
These three categories of law are discussed in more detail below. At the end of this chapter we will consider which strategies individuals and communities can use to protect their environmental rights.
The Constitution contains a number of sections that are relevant to the environment.
Everyone has the right to:
Section 24 therefore places a duty on all spheres of government to take reasonable steps, including to make laws, prevent pollution, promote conservation and ensure sustainable development.
The meaning of these words is not entirely clear so it will be up to the courts to decide on their exact meaning in the future. It seems that "health and well-being" include the following:
There has been much debate about the application of environmental rights. It is quite clear that these rights apply between the state and private persons. However, the question is whether the right applies between two private persons. It seems that the courts have accepted that environmental rights can apply between private persons.
See Section 8: Application of the Bill of Rights.
The Constitution recognises the general need to improve the quality of life of all persons. Certain constitutional rights can be used to support reasonable environmental demands. However, it should also be noted that there may be tension between the environmental right and other rights in the Bill of Rights. These include:
See Section 26: Right of access to housing, Section 27: Right of access to health care, food, water and social security,
General rights relating to the environment
A community residing in an informal settlement is living with no running water, refuse removal and sanitation. The bucket toilet system is used, which is a constant health risk to the environment and community. Which rights are potentially affected in this case?
The lack of water or sanitation in the informal settlement could pose a threat to the health of the residents. The failure of the local authority to provide toilets, water, sanitation, adequate housing and refuse removal potentially violates a number of constitutional rights, including:
What can the residents do?
The right to equality and non-discrimination is important for people working on environmental issues. An indirect form of discrimination was recognised in the United States of America where it was found that most hazardous or polluting industries are built in poor or black neighbourhoods. These areas then bear an unequal share of the environmental problems from these industries, as a result of their harmful effects on the health and safety of residents. This practice has been called environmental discrimination or environmental racism. Many decisions about the use of land taken in South Africa during apartheid can also be criticised as environmental discrimination.
The opposite of environmental discrimination can be called environmental justice. Environmental justice requires that:
A local municipality requires rubbish collection to take place only twice a month in a local township because the township is far from the main town centre. The wealthy neighbourhood, which is close to town, has rubbish collections once a week. This is a clear case of inequality on the part of the municipality.
Section 32 of the Constitution guarantees every person the right of access to any information held by the state and any information that is held by another person that is required for the protection of any rights. The right to information is important for environmental issues. Without access to the proper information people do not know what action is being planned or the procedures that will be followed. It is not possible to participate properly in public debates if the public does not have relevant information. For example, the public has the right to know in advance about possible plans for the building of a new railway line or factory in their neighbourhood and they have the right to inform decision-makers if they are against the building of these structures.
The Promotion of Access to Information Act (No 2 of 2000) (PAIA) was passed to give effect to section 32, and sets out detailed procedures which must be followed in order to obtain access to information.
People in your community own land next to the sea. They find out that a developer has applied to local government for permission to build a steel mill in the area in which they live. Although they have tried to get information about the proposed development from the developer they have not been successful. Members of the community are concerned that the development of the steel mill could cause pollution and other environmental problems. They need this information in order to participate fully and effectively in the public consultative process that is to follow.
A large factory is established next to your community. Many people get sick and you suspect that it is caused by fumes being emitted from the factory. The company refuses to tell the community what substances are being produced by the factory. People need this information in order to be able to lodge a complaint with the relevant authority.
The community can demand this information from the developer or factory as well as from any government department or local authority which has access to the relevant information. The best way to protect this right of access to information is to make an application to the court for an order telling the developer or factory to provide the community with the information that it needs.
Before a community takes any action it will have to establish that a constitutional right (such as the environmental right) has been infringed. Secondly, it will have to prove that it needs the information to protect this right. Thirdly, the community will need to comply with the procedures set out in PAIA. A number of environmental non-governmental organisations have relied on this right to obtain access to information, for example, concerning genetically modified organisms.
Administrative action refers to decisions made by the state and representatives of the state. Environmental conflicts often arise as a result of the incorrect or unfair use of administrative decision-making powers. In terms of section 33:
The Government has passed the Promotion of Administrative Justice Act (No 2 of 2000) (PAJA) which sets out what administrative action is, the actions that would amount to procedurally fair administrative action, the grounds on which administrative action can be challenged, the remedies available, the procedures that must be followed to obtain written reasons and the relief that a court can grant a person who is asking for the review of a decision.
See What are the requirements of lawfulness, procedural fairness and reasonableness?
Certain people in your community live in an informal settlement near the coast which is close to an expensive coastal holiday resort where people from the city own holiday houses. A chemical company has been granted permission by the local authority to set up a chemical production plant very close to the informal settlement.
It is likely that this chemical plant will harm the environment as well as the health of the people in the community. These people want to find out how the chemical company got permission to set up the production plant, and what other action the chemical company may be thinking of taking. They have formally requested the local authority to provide them with information about the new chemical production plant so that they can use the information to comment on whether they think the permission for the plant should have been granted or not. The local authority is a part of government. Therefore, any decision that it makes is an administrative decision.
What can the community members do?
The common law is relevant in dealing with environmental issues through the Law of Delict, the Law of Nuisance and the Law of Neighbours. The common law rules of delict, nuisance and neighbour law can be used to protect people’s environmental rights relating to noise pollution, air pollution and water pollution.
The common law of delict allows you to claim compensation from someone who does something that causes you harm. Provided that certain requirements are met (listed below), such an action is called a delict. For example, if a person drives their car negligently and collides with the car of another person, the owner of the damaged car could sue the driver who negligently or intentionally caused the crash and could claim the cost of repairing the damage to the car as well as compensation for any of his or her injuries. This claim would be made under the common law of delict.
For a delictual claim to succeed the person making the claim (the claimant) must prove that:
the monetary loss (damages) was suffered as a result of the action of the negligent person (the action of the negligent person caused the monetary loss).
You can sue a person in court for loss caused to you by the wrongful actions of that person and claim compensation for this loss. This will have to be done through an attorney who will prepare the case and take it to the court.
See Ways to resolve environmental disputes.
Eric owns a small-holding with a few animals. He makes a small living from his animals. The small-holding borders on a national road. A truck carrying fertiliser goes out of control, leaves the national road and overturns on Eric's land spilling the load of fertiliser into the small dam on his property. As a result the water in the dam is contaminated or polluted. Eric's animals drink from this dam. Eric is not at home to stop his animals drinking the water and as a result they become sick and die. Can Eric claim compensation from the owner of the fertiliser company?
The general rule of delict says that Eric can claim compensation from someone who has done him harm, but he will have to show that all of the elements of delict are present. This means that he will have to show that:
The most important aspect of the law of nuisance in regard to environmental rights is the law of private nuisance which recognises the right of an owner of land to enjoy his or her land in physical comfort, convenience and well-being without unreasonable interference from others. People do have to endure a certain amount of interference with their right to enjoy their land for example, smoke blowing across or noise generated by another person, as long as this interference is not unreasonable. If the interference is unreasonable then a landowner can take legal action to protect his or her right to enjoy his or her land.
Bethuel lives in a small town next to a disused quarry. The local authority uses the quarry to dump all of the household waste that is collected from residents. Bethuel has become sick as a result of living so close to the waste and has started to develop bad skin ailments. What action can he take?
What rights are affected?
The person suffering the nuisance can apply to the court for (a) an interdict to stop the person who is causing the nuisance from continuing with the conduct, and (b) damages (monetary compensation) where the conduct has resulted in financial loss. The claim can be made against the owner of the property. However, a landowner is not responsible for the nuisance caused by his tenant unless he authorised the nuisance.
It is a general rule of our law that a landowner may not use his or her property in a way that causes harm to another person. This means that a landowner's right to use the property is limited and there is an obligation on him or her not to act in a way that will infringe the rights of a neighbour. The test of whether the landowner's use of his or her property fails to comply with this obligation is one of reasonableness and fairness. This principle of reasonableness is relevant to all forms of polluting activities.
Derrick lives on a cattle farm in a quiet rural area. His neighbour has set up a device to scare baboons away from his kitchen vegetable garden, which makes explosive noises at regular intervals during the day and night. Derrick’s family cannot sleep because of the noise, and his cattle have become restless and uncontrollable. What can he do?
What rights are affected?
It is possible to see the interaction of the three branches of law that have been discussed so far:
In this case it would be possible to argue that:
Laws made by national, provincial and local governments add to the rights and responsibilities that are part of the Constitution and the common law. These laws, also called legislation, must comply with the Constitution but they can amend (change) the common law.
Environmental laws made by the government set out the rights and responsibilities of people relating to three over-arching areas, namely: land-use management; pollution control and waste management control; and natural resources. Environmental laws therefore regulate various activities, including who can build, what can be built, and where can they build; who can fish or mine, cut trees and shoot animals, as well as where and when this can happen.
These laws contain a number of rules. Anyone who fails to comply with these rules could be punished through imprisonment and/or a fine.
There are two broad types of laws. Firstly, there are framework laws which regulate all environmental concerns and should be taken into account when dealing with any environmental issue. Secondly, there are sectoral laws which deal with things like land-use management; pollution control and waste management, or nature conservation. So, for example, if you are dealing with a waste site which is polluting the water in the area of your community, you will need to consider both framework laws and the sectoral laws that are relevant to land and water pollution.
There are two laws that deal with the environment generally:
Two other framework laws, the Promotion of Administrative Justice Act and the Promotion of Access to Information Act, are not concerned specifically with the environment, but they give content to environmental rights and issues. These laws should be considered when dealing with all environmental issues.
NEMA is relevant to the regulation of all three of the environmental areas referred to, namely land-use planning and development, natural resources and pollution control and waste management.
The object of NEMA is to provide a framework for co-operative environmental governance (making sure that the government authorities co-ordinate their efforts to manage the environment) and aims to achieve this by establishing:
What are the NEMA principles?
NEMA sets out a range of national environmental management principles, some of which are set out below. The actions of all state institutions that ‘may significantly affect the environment’ must comply with these principles. These state institutions would include national, provincial and local government as well as state institutions like Eskom. The importance of these principles has been recognised by South African courts and include:
How does NEMA protect the environment?
NEMA provides a range of tools aimed specifically at protecting the environment. These include the following:
Administration and enforcement
NEMA provides for the enforcement of provisions of certain environmental Acts and allows the Minister of Water and Environmental Affairs or the MEC of the provincial department responsible for environmental affairs to appoint Environmental Management Inspectors to implement this function.
When can you use NEMA to make a complaint?
NEMA says you can take legal action to enforce any environmental law or a principle of NEMA:
What does NEMA allow you to complain about?
A person can make a complaint or take legal action under NEMA if:
An explosion releases a cloud of poisonous gas. Residents are warned on the radio to go indoors and shut their windows, and asthmatics are told to seek urgent medical treatment. People are told what kind of gas it is. The health department and municipal emergency services are told how to treat people who get sick from the gas.
What action can you take under NEMA?
You can take action under NEMA not only when someone breaks the law, but also when someone has a duty to do something and does nothing. For example, the government has a duty to stop people from polluting rivers. If government does nothing to stop the pollution, you can take action to compel government to fulfil its duty. Therefore, if you feel that the government or any person has violated, or is violating, an environmental law, including NEMA, you can:
Conciliation under NEMA
NEMA allows a person to request government to appoint a facilitator in order to facilitate meetings of interested and affected parties, with the intention of reaching agreement on referring a disagreement to conciliation.
The Environment Conservation Act is another law that relates generally to the environment. This Act has largely been replaced by NEMA and only a few relevant sections still remain. These sections relate to:
Certain environmental laws apply to specific environmental areas in the over-arching categories of land-use planning and development, natural resources and pollution control and waste management.
When dealing with an environmental issue falling into one of these three categories, you must consider both the sectoral legislation relevant to the issue and the framework legislation.
Therefore, if you were looking for laws relating to the development of a steel mill, you would look under land-use planning and development because the law relating to planning would be important. On the other hand if you needed information regarding how to apply for a commercial fishing permit or commercial forestry permit, you would look at the laws dealing with natural resources because fish and forests are natural resources and there are specific laws that deal with the allocation of fishing and forestry quotas and licences. You may also need to consider framework legislation such as the EIA provisions contained in NEMA. [delete??] If your quota or licence application was refused you could consider using the Promotion of Administrative Justice Act to obtain reasons for the decision or to challenge the decision.
Two sectoral laws are set out briefly here, namely the National Environmental Management: Air Quality Act (No 39 of 2004) and the National Water Act (No 36 of 1998).
The Air Quality Act (AQA) came into effect on 11 September 2005. However, certain important sections have not yet come into operation. The object of the Act is to improve air quality and prevent air pollution through a number of measures, including setting standards for monitoring, managing and controlling air quality, and establishing fines and penalties for people who do not comply with the Act.
The AQA requires the establishment of a national framework for achieving the object of the Act and the adoption of national, provincial and local standards for ambient air quality. Ambient air refers to outdoor air and so excludes indoor air. Importantly, the AQA makes the management of air quality the responsibility of local government through air quality management plans, pollution prevention plans, by-laws and other policies.
How does the AQA regulate air quality?
The AQA aims to regulate air through providing for:
Cape Town’s Air Quality Management Unit is part of the City’s Health Directorate and works in partnership with Water Services and Environmental Resource Management. The City’s Air Quality Management Unit has developed an Air Quality Management Plan (AQMP) in terms of the Air Quality Act. The objectives of the AQMP include to:
Types of air pollutants that are regulated by the AQA
Air pollutants include gases and particles that pollute the air. The AQA requires that limits and standards be set for the concentrations of these gases and particles. The following are some of the most important air pollutants:
The Minister has set national standards for these pollutants. While carbon dioxide is the most important greenhouse gas, contributing to global warming and climate change, it is not regulated by the AQA.
(Source: City of Cape Town - Air Quality)
The National Water Act recognises that water is a natural resource that belongs to all people and appoints the State as public trustee of South Africa’s water resources. The National Water Act regulates the way in which people obtain the right to use water and provides for just and equitable use of water resources. The main purpose of the Act is to protect, conserve and manage water resources in a sustainable and equitable way so as to take account of various factors, including:
National government, acting through the Minister and Department of Water and Environmental Affairs, is responsible for achieving this main purpose. The Minister has the final responsibility of fulfilling certain obligations relating to the use, allocation and protection of water resources.
It is not possible to deal in detail with all of the sectoral laws. Therefore, all relevant sectoral legislation has been listed according to the three over-arching categories in the checklist at the end of this chapter. The checklist can be used to help you find out the laws that will apply in a particular situation. Once it has been established which laws apply, you can then follow the steps set out in the section on Ways to resolve environmental disputes.
It is important to note that there are two ways to resolve environmental disputes: using the courts and the formal legal channels or using alternative ‘non-legal’ methods such as public campaigns or petitions. It may be appropriate to use both ways in specific situations.
When deciding what action to take to solve an environmental dispute, it is important to first determine what rights have been infringed. Once you have done this you will be able to consider which action would be most appropriate. Here is a suggested three-step plan for dealing with an environmental dispute:
(See Resources for useful information on taking steps to deal with environmental issues; in particular refer to the website of the Department of Environmental Affairs and Tourism: www.environment.gov.za)
There are different ways in which environmental disputes can be solved without going to court.
Certain environmental laws provide that certain public participation procedures must be followed when the relevant authorities make decisions (such as whether or not to issue permits or licenses) or make regulations under the law. These laws include the NEMA, the AQA, the National Forests Act and the Marine Living Resources Act.
This Act sets out requirements for procedurally fair administrative action. These requirements range from notice-and-comment type procedures to public hearings. If the relevant authority fails to comply with these procedures, their actions could be held to be invalid. (See Right to Just Administrative Action). The public participation procedures provide valuable opportunities for the public to become involved in the decisions and actions taken under these laws. However, public participation in these processes may require a fairly high level of expertise and awareness of planning and development procedures. Partnerships with environmental groups and supportive academics will probably be necessary.
Environmental issues are increasingly becoming the focus of public campaigns. These issues are often called green issues. Drawing the attention of the government and developers to the facts may be enough to motivate them to seek better solutions, or be prepared to negotiate. It is often best to tackle a problem by appealing for negotiations or mediation with those responsible for the problem. Other action should be considered such as protests, media campaigns and, finally, possible court action. Approach local community organisations to add pressure to the campaign and use local newspapers to publicise something that is happening in the environment.
Environmental organisations may be involved in helping to develop government policy, empowering people to participate in law-making or policy processes or public participation processes, lobbying for environmental changes or actions, taking up peoples’ environmental rights, taking up environmental or conservation issues caused by existing developments, working on conservation, and so on.
See Resources for contact details of environmental organisations.
Members of trade unions can play an active role in environmental issues by taking up issues relating to workplace health and safety. Trade unions can extend their activities beyond immediate workplace needs to the worker environment in general. Trade unions can take action against industries that have a bad effect on the environments in which communities live. For example, if a particular industry dumps its poisonous waste products into a river that runs through a town, this can have serious consequences for people who use the river or children who play in the river. The trade union can take this up with the management and threaten to take action unless management does something about the pollution.
Many decisions affecting the environment take place at a local level. While laws about environmental issues are made at national, provincial and local level, implementation and monitoring of the laws is often a local issue. For example, it is at local level that settlements are planned and development decisions regarding industrial, commercial and residential growth are taken. The local municipality manages sewage and drainage, waste disposal and so on. So it is at local level that people need to contribute to environmental decisions and take up issues. If there is a particular environmental issue in your area that needs attention, you can approach the local municipality in your area and point this out to them. If they don’t take action then you could approach the relevant department in the provincial govenrment and thereafter, national government. The national Department of Water and Environmental Affairs and provincial departments dealing with environmental affairs are mainly responsible for environmental conservation. However, other government departments would be involved if the issue concerns the provision of safe and healthy environments. You could also lobby parliamentary portfolio committees.
There are various remedies to environmental problems that are available through the legal system. However, using the courts to solve an environmental problem can be very expensive because of the legal fees involved. For this reason going to court should be seen as the last resort in solving a problem. Other ‘non-legal’ methods should first be explored.
The law requires that a person have some personal interest in a matter in order to bring that matter before the court. This rule (called the requirement of locus standi) has sometimes prevented people wanting to raise an environmental issue, from approaching the courts because it was found that they did not have sufficient personal interest in the matter. However, the Constitution has broadened the requirement of locus standi and states that in addition to people acting in their own interest, the following people may approach a court with regard to the infringement of a person’s rights:
Therefore, individuals and Non-Governmental Organisations (NGOs) are allowed to take action to protect the environment in the public interest. One person from the group can represent the interests of the whole group. If the group does not have sufficient funds to pay the legal costs, it could approach an NGO to bring the relevant action.
NEMA also states that a person may approach the court for relief in the case of a breach, or threatened breach, of NEMA or any other environmental law if it is:
NEMA also contains provisions relating to the legal costs associated with taking a matter to court. It states that if a person brings a matter to court in the environmental or public interest and is not successful, if certain requirements are met, the court may decide not to order that person to pay the costs of the successful party. In addition, if the relevant person is successful, the court may decide (on application by the relevant person) to grant them certain additional legal costs to which they would not ordinarily have been entitled). These provisions should assist people who wish to bring matters to court in the environmental or public interest.
The various laws listed above each provide legal remedies that are specific to the relevant laws. In order to use these remedies, you will need to determine which law applies to a person’s specific needs and, perhaps with the help of an attorney, decide how to use the specific law.
When trying to establish which law applies to your client’s query, you should ask the following questions:
Once you have identified the applicable law you must decide what legal remedy you wish to pursue. The remedies that follow are useful in the protection of environmental rights.
The court can be approached to interdict a person from performing a harmful action, without going through the process of claiming damages.
There are three basic requirements for granting an interdict:
EXAMPLE - Obtaining an interdict
Members of your community live near a saw mill, which prepares wood planks for sale to the building trade. Once the planks are made the remaining sawdust and wood chips are burnt. This results in huge clouds of smoke, which cause serious air pollution in the area. Children living near the saw mill have started to develop serious asthma symptoms, which the doctor says is caused by the pollution.
The saw mill is causing air pollution, which may be infringing the community’s (constitutional?) right to an environment not harmful to their health or well-being. It is also likely that the requirements of a specific law are being violated. This factor would strengthen an application made to court for an interdict to prevent the pollution from continuing. It also appears that there is no other remedy available to the people living near the saw mill.The community could bring an application for an interdict ordering the owners of the saw mill to stop the burning process.
Appeal and Review
Review refers to the court's ability to question whether the procedure followed by an organ of state, in making an administrative decision, was correct. You can approach the court to review an administrative decision when you feel that correct procedures have not been followed in making that decision. For example, a factory has been built without the people who live near the factory being given an opportunity to express their views on whether or not they want the factory to be built. Different laws set out different periods within which you must review a decision and you should abide by these time periods. You will need to consult with an attorney in order to apply for a review. It is important that the procedures set out in the PAJA are complied with.
See What is a review?
Appeal is another way in which we can challenge the outcome of an administrative decision.While review limits us to testing whether the procedure that was followed in making an administrative decision was correctly followed, when you appeal against an administrative decision you are asking the court to look at the reasons why the decision was made. In other words, you ask the court to look at the information that was considered by the decision-maker in coming to the decision. You can appeal against the outcome of an administrative decision when you feel that the information available to the decision-maker should have resulted in a decision different from the one that was given. Different laws set out different periods within which you must appeal a decision and you should abide by these time periods. You will need to consult an attorney in order to lodge an appeal.
See What is an appeal?
You can make a delictual claim when the actions of another person have caused harm to your property or yourself. The harm is represented as an amount of money which you claim from the wrongdoer to compensate you for the harm that you have suffered. You will need to consult with an attorney to bring a delictual claim before the court.
See Law of Delict.
In recent years, the problem of global climate change has received increasing attention. Climate change has been caused by a significant increase in global greenhouse gas emissions (since the Industrial Revolution) and has led to various problems including increasing temperatures, rising sea levels and more extreme weather conditions including droughts and floods.
In response, the international community has adopted the United Nations Framework Convention on Climate Change (‘UNFCCC’) and the Kyoto Protocol to the UNFCCC, which require the reduction of greenhouse gas emissions by developed countries. Developing countries are not yet required (by the international community) to reduce, or mitigate, their greenhouse gas emissions. Another aspect of climate change is adaptation, which will see many (mainly developing) countries being forced to adapt to the negative impacts of climate change, including reduced crop yields caused by droughts.
South Africa has a relatively high level of greenhouse gas emissions, due to the fact that most of South Africa’s energy is produced from coal. While South Africa is a developing country, and government supports the position that developed countries should take the lead in responding to climate change, the South African government has acknowledged the urgency in responding to climate change. However, it is important that any climate change-related measures that are implemented do not impact negatively on the poor.
A number of policy papers have been drafted including the Initial National Communication under the UNFCCC (in 2000) and the National Climate Change Response Strategy (in 2004). Government also commissioned a study on addressing climate change, the Long-Term Mitigation Scenarios (in 2007) and has published a draft Second National Communication under the UNFCCC (in 2010). More recently, government published the National Climate Change Response Green Paper (GN 1083 in Government Gazette No. 33801 dated 25 November 2010), which sets out the climate change-related measures that could be implemented in the various sectors of South Africa’s economy. In addition, government has published a Carbon Tax Discussion Paper for comment. This document proposes to ‘put a price’ on carbon, so as to discourage the generation of carbon dioxide, thereby reducing South Africa’s greenhouse gas emissions.
Some climate change-related measures have been implemented in South Africa, such as the establishment of targets for renewable energy and energy efficiency. In addition, government has indicated that it intends to reduce its greenhouse gas emissions below ‘business as usual levels’ by 2020. However, no significant and concrete measures have yet been implemented.
A small factory in your neighbourhood is burning something that gives off fumes and clouds of smoke that make you feel ill.
Write a letter to the committee in the municipality that deals with environmental issues, reporting the matter and asking them to investigate.
A sewerage treatment plant regularly overflows and raw sewerage is pumped into a river where children play.
Write a letter of complaint to the Department of Water and Environmental Affairs and to the committee in the municipality that deals with water affairs.
Your municipality is making a decision about a development that will change the environment in the area. You feel certain procedures of NEMA haven't been followed in the planning process and you are afraid that the development will go ahead.
Wait for the response to your complaint. If it goes against you, think about appealing, or applying for conciliation, and only then going to court to have the decision set aside.
The government plans to use land in a certain way and you think is going to have a bad effect on the environment.
Write a letter appealing against the decision. In your letter:
If you are not satisfied with the result of your appeal you can ask the government to appoint a facilitator to have the dispute referred to conciliation.
A group of people have been burning large numbers of tyres in an open field in order to sell the steel that is found inside the tyres. Your municipality has been unable to catch them or stop them burning the tyres. The land owner cannot control the tyre burners either.
What can you do?
First complain to the municipality and then the provincial government. If you are not satisfied with the steps taken by the municipality or provincial government, you should write to the Director-General or provincial head of department. You must:
If you make a complaint to the Director-General or provincial head, they must investigate the case and tell the polluter to take reasonable steps to stop the problem by a certain date.
If you are not satisfied with the result of your complaint you can request the government to appoint a facilitator to try to have the disagreement referred to conciliation.
See National Environmental Management: Air Quality Act (No 39 of 2004)
Government and community deadlock
The government decides to allow a dam to be built that will destroy many villages and natural areas. A study was done on the likely impact on the environment (environmental impact assessment). However, the environmental impact assessment report does not take into account cultural considerations, like the fact that the dam will flood graves and religious sites. The local community is against the dam development because of this. The community and the government cannot resolve their differences.
Write a letter to the minister, member of provincial executive council or municipal council (whichever one is concerned with the dispute), and ask them to refer the dispute to a conciliator or facilitator.
If the parties cannot agree, the conciliator can ask the two parties whether they would like the case to go to arbitration. The arbitrator’s decision will then be final..
You work for a doctor and your work includes cleaning up and throwing away waste. The doctor always tells you to throw the medical waste in a nearby rubbish dump. You feel this is wrong and one day you tell the doctor why you think it is wrong. The doctor threatens to dismiss you.
You can tell the doctor that NEMA says you cannot be dismissed for refusing to do this.
You work for a company that grows vegetables. One of your employers is secretly using a banned pesticide on one of the farms in order to grow more vegetables.
You may disclose this information to various persons including: a committee of Parliament or of a provincial legislature, the Public Protector, an attorney-general or the South African Human Rights Commission. NEMA helps to protect you against being victimised for blowing the whistle on your employer, provided that you comply with the provisions of NEMA.
These are things to think about when choosing the best action to take when someone or the government has done something bad to the environment
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The laws listed here are only the most important national laws that deal specifically with environmental issues. Provincial laws are not included.
See Sectoral laws relating to the environment.
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