ENVIRONMENTAL LAW

The basics of environmental law

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 which we live in, which include things such as 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.

Why do we need to protect the environment?

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) get sick. Many of the natural resources which we use 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 also have a responsibility to protect and use the environment in a way that will protect it for ourselves, our children, and our grandchildren.

Many people believe that human needs are more important than the environment. They say that our major aim must be creating economic growth and jobs, and that the green (environmental) agenda must take second place. Some people feel hurt or insulted when others show concern over endangered species like rhinos when children do not have enough to eat.

But, 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, the temperature is rising and most important, the ozone layer that should protect us from the dangerous rays of the sun has been damaged and does not work as effectively as it did before. All this impacts on how people live and it is the reason why people now talk about the term sustainable development.

What is sustainable development?

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 conventions that aim to protect the environment.

Which laws are relevant to the environment?

There are three categories of law in South Africa that affect the relationship of people with the environment:

• the Constitution which protects our right to enjoy and have access to the environment.
• the Common Law
  • regulates how people interact with each other in the context of the environment.
  • protects our use and enjoyment of our own property, for example, but limits it in certain ways so that this use and enjoyment does not interfere with the rights of other people.
• national, provincial and municipal laws
  • some laws are like a framework because they apply across all aspects of the environment.
  • other laws are sectoral in nature as they only apply to certain parts of the environment such as water, fish, plants, trees, minerals etc.

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. So, the Constitution, the common law and legislation work together like a web of rules that you can use to find out what rights people have 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

The Constitution has a number of sections that are relevant to the environment.

The environmental right - Section 24

Everyone has the right to:

• an environment which is not harmful to their health or well-being
• have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that:

• prevent pollution and ecological degradation
• promote conservation
• secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.

Section 24 therefore places a duty on all spheres of government to take reasonable steps, including making laws, to prevent pollution, promote conservation and ensure sustainable development.

What do the words ‘health and well-being’ mean?

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:

• Protection from pollution in the air, water, food or soil. This includes protection from dangers in the workplace, and from less obvious dangers to health such as noise.
• Protection of our well-being covers both physical and mental wellbeing. This would include protection from nuisances and invasions of privacy and dignity. The European Court of Human Rights recently ruled that a bad smell from a tannery that offended neighbouring residents was a violation of their right to privacy. In our law this would probably qualify as a violation of the right to well-being. So we can say that something affects our well-being if it affects our ability to enjoy our life.

Who can you enforce your environmental rights against?

There has been much debate about the application of environmental rights. It is quite clear that these rights apply between the state and citizens. However, the question is whether the right applies between two citizens. It seems that the courts have accepted that environmental rights can apply between one person and another person.

See Section 8: Application of the Bill of Rights.

Other rights relevant to the environment

The Constitution recognises the general need to improve the quality of life of all citizens. Certain constitutional rights can be used to support reasonable environmental demands. These include:

• The right to life (Section 11)
• The right to human dignity (Section 10)
• The right to privacy (Section 14)
• Certain socio-economic rights
  • the right of access to adequate housing (Section 26);
  • the right of access to sufficient food and water (Section 27);
  • the right of access to health care services (Section 27);
  • the rights of children to basic nutrition and shelter, and to be protected from maltreatment, neglect, abuse or degradation (Section 28).

See Section 26: Right of access to housing, Section 27: Right of access to health care, food, water and social security,

The Right to Equality - Section 9

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, for example, 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 means:

• the good things we get from the environment are shared equally among all people,
• the negative impacts, such as rubbish dumps or power stations, are shared amongst all communities.

The Right of Access to Information - section 32

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 have 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) sets out detailed procedures which must be followed in order to obtain access to information.

The community can demand this information from the developer/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/factory to provide the community with the information that they need.

Before a community takes any action they will have to establish that a constitutional right (such as the environmental right) has been infringed. Secondly, they will have to prove that they need the information to protect this right. Thirdly, they will need to comply with the procedures set out in PAIA.

The Right to Just Administrative Action - Section 33

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 unjust use of administrative decision-making powers. In terms of section 33:

• everyone has the right to administrative action that is lawful, reasonable and procedurally fair - Section 33(1)
• everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for the decision - Section 33(2)

The Government has passed the Promotion of Administrative Justice Act (No 2 of 2000) (PAJA) which sets out what is administrative action, what actions would be 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 the court can grant a person who is asking for a review of the decision made.

See What are the requirements of lawfulness, procedural fairness and reasonableness?

The Common Law

The common law is relevant in dealing with environment issues through the Law of Delict, the Law of Nuisance & 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 Law of Delict

The common law of delict allows you to claim compensation from someone who does something that causes you harm. 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 can sue the driver who negligently or intentionally caused the crash. The owner of the damaged car can 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 action of the other person was wrongful because it caused harm to another person or their property;
• That the person doing the action was negligent (was at fault) or acted intentionally;
• That the claimant suffered loss which can be given a monetary value (this monetary value is called damages);
• 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).

How does this help you with an environmental issue?

You can sue a person in court for loss caused to you by the wrongful actions of a person and you can 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.

The Law of Nuisance

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 their land in physical comfort, convenience and well-being without unreasonable interference from others. People do have to put up with 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 the landowner can take legal action to protect their right to enjoy their land.

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.

The Law of Neighbours

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 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.

Laws made by national, provincial and local government

Laws made by national, provincial and local governments add to the rights and responsibilities that are part of the Constitution or the common law. These laws, also called legislation, must comply with the Constitution but they can change the common law.

Environmental laws made by the government set out the rights and responsibilities of people relating to three issues: land-use management; pollution control and waste management control; and natural resources. Environmental  laws therefore regulate, for example, who can build, what can they build 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 the framework laws which regulate all environmental concerns and should therefore 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.

Framework environmental laws

There are three laws that deal with the environment generally:

• National Environmental Management Act (No 107 of 1998) (NEMA)
• Environmental Conservation Act (No 73 of 1989)
• National Environmental Management: Air Quality Act (No 39 of 2004)

Two other framework laws, the Promotion of Administrative Justice Act and the Promotion of Access to Information Act, are not aimed specifically at the environment, but they give content to environmental rights and issues. These laws should be considered when dealing with all environmental issues

National Environmental Management Act (No 107 of 1998) (NEMA)

NEMA is relevant to the regulation of all three of the environmental issues referred to, 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:

• procedures for state decision-making and functions which impact on the environment, and
• state institutions which co-ordinate these decisions and functions.

What are the NEMA principles?

NEMA sets out a range of national environmental management principles, some of which are set out below: 

• environmental management must put people and their needs first
• development must be socially, environmentally and economically sustainable
• there should be equal access to environmental resources, benefits and services to meet basic human needs
• government should promote public participation when making decisions about the environment
• communities must be given environmental education
• workers have the right to refuse to do work that is harmful to their health or to the environment
• decisions must be taken in an open and transparent manner and there must be access to information
• the role of youth and women in environmental management must be recognised
• the person or company who pollutes the environment must pay to clean it up
• the environment is held in trust by the state for the benefit of all South Africans
• the utmost caution should be used when permission for new developments is granted

• 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 corporations like ESKOM.

How does NEMA protect the environment?

NEMA provides a range of tools aimed at specifically protecting the environment. These include the following:

• Integrated environmental management - NEMA regulates the system of environmental impact assessments (EIA). The Government has passed a number of EIA regulations in terms of NEMA which set out the EIA processes and requirements. These require that the potential impact on the environment of certain listed activities must be considered, assessed and reported to the relevant authorities. There are two lists of activities. In one list are activities which are required to undergo a full environmental impact assessment. The other list sets out activities which need to undergo only a basic environmental assessment.
• Duty of care to protect the environment  - people whose activities cause significant pollution or degradation (spoiling) of the environment have to take reasonable steps to prevent the pollution or degradation from happening. This is referred to as the ‘polluter pays’ principle. If the activity is authorised by law or cannot reasonably be avoided or stopped, people must still take steps to minimize (lessen) and fix the pollution or degradation.
• Worker protection - workers can refuse to do environmentally hazardous work.
•  Emergency situations -  NEMA sets out detailed procedures which must be followed by people in the case of an emergency incident occurring which will impact on the environment.
• Protection of whistleblowers - people who disclose information of an environmental risk (whistleblowers) are protected.
• Private prosecution – people can prosecute others if it is in the public interest or in the interests of protecting the environment where the state fails to do so.
• Access to environmental information – people have the right to have access to environmental information from the government or private persons.  
• Controlling the use of vehicles in the coastal zone - the Off-Road Vehicle Regulations (ORV Regulations) regulate the use of vehicles on the shoreline and the establishment of boat launching facilities.

The ‘polluter pays’ principle

The ‘polluter pays’ principle in NEMA means exactly that. Whoever pollutes the air has to pay the cost of fixing the damage – to the environment and to anyone whose health is affected by the pollution. In these laws, the definition of ‘polluter’ is broad. Anyone associated with the polluter – an employee, manager, agent or company director- could also be convicted of polluting, if he or she did not take reasonable steps within their power to prevent the pollution. The state can order such a person to take steps to deal with the pollution. If they fail to comply with the order, the state will take steps to remedy the situation and will recover all the costs of doing this from the people responsible.

Administration and enforcement

NEMA provides for the enforcement of provisions of certain environmental Acts and allows the Director General or the Provincial Head of Department 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:

• to protect your own interest
• to protect someone else's interests who cannot do so
• on behalf of a group of people whose interests are affected
• if the legal action is in the publics interest
• if the legal action is in the interests of protecting the environment

What does NEMA allow you to complain about?

A person can make a complaint or take legal action under NEMA if:

• someone, including the government, has broken an environmental law, including NEMA
• the government has not obeyed a principle of NEMA
• the government has given permission for an activity or development that affects the environment, without properly checking how it could affect the environment and people
• someone, including the government, has caused bad pollution or damage to the environment
• a person has been punished for refusing to do work that might harm the environment, or for reporting on someone who is harming the environment
• a major accident (emergency incident) that threatens the public has happened and there has not been a proper report about it nor has there been a clean up operation
• the state has not prosecuted a person for breaking an environmental law and you believe that he/she might be guilty.

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 it does nothing to stop the pollution, you can take action to make it protect the environment. So, if the government or any person breaks an environmental law, including NEMA, you can:

• go to the police and lay a charge
• ask government to find and pay for a conciliator to solve the dispute
• ask the Director General to investigate (See Complaining to the Director General.)
• refuse to work if it could cause environmental damage,
• alert people to something serious going on by ‘whistle blowing,
• react to emergency incidents,
• approach the public protector
• approach the human rights commission
• go to court and ask for an order to:
  • stop the person or government from breaking the law,
  • force government to stop the person from breaking the law, or
  • order someone to do a clean up of pollution if they haven't done this when they should have.

Conciliation under NEMA

NEMA allows you to ask the government to arrange and pay for conciliation of a disagreement when:

• the government has done something that may affect the environment
• you have appealed against a decision of the government

Environment Conservation Act (No 73 of 1989)

The Environment Conservation Act is another law that relates generally to the environment. Although most of this Act has been replaced by NEMA, there are still some important sections that remain in operation. These sections relate to:

• littering
• waste management
• limited development areas
• regulations on noise, vibration and shock

National Environmental Management: Air Quality Act (No 39 of 2004)

The Air Quality Act (AQA) came into effect on the 11th September 2006. The purpose of the Act is to improve air quality through a number of laws and regulations, to set standards for monitoring, managing and controlling air quality, and set out fines and penalties for people who break the law. 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 is the air in the environment but excludes indoor air.  Importantly, the AQA makes 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:

• a national air quality framework, with standards for monitoring ambient air quality and emissions
• the collection and management of air quality data
• provincial environmental implementation or management plans
• local air quality management plans and by-by-laws
• the control of certain polluting fuels
• the control of certain fuel-burning appliances
• the control of dust, noise and offensive odours
• a licensing system for certain fuels, applicances and activities.

Example

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 AQMP has the following objectives:

• To formulate an air quality management system for the City of Cape Town
  
• To specify ambient air quality standards and targets for Cape Town
  
• To monitor pollutants which cause brown haze and affect peoples’ health
• To improve air quality in informal areas
• To enforce current and future legislation for air quality management
• To compile a comprehensive omissions database for the City of Cape Town
• To control emissions from vehicles in the City
• To consider air quality in land use and transport planning
• To establish the bad effects of air pollution on the people who live in Cape Town
• To establish an education and communication strategy for air quality management
• To review the air pollution situation on an ongoing basis and report on progress,

Types of air pollutants that are regulated by the AQA

Air pollutants are things like gases and particles that pollute the air. The AQA sets limits and standards for the concentrations of these gases and particles. The following are some of the most important air pollutants:

• Carbon monoxide – its main source is burning fuel from motor vehicles as well as from burning wood and industrial processes;
• Sulphur dioxide – coal-fired power stations and diesel engines are the main sources of this gas;
• Lead – lead is found in non-lead-free fuels, paints, batteries and pipes; when it is heated it becomes a liquid and appears in the air as fine particles;
• Particulate matter – Particulates are the tiny particles in the air, such as soot, dust, smoke, pollen, ash, aerosols and droplets of liquid. This can be seen as a white or brown haze. Very small particulates can be breathed deep into the lungs. The sources of particulates include fuels, diesel engines, wood burning, industrial smokestacks and chimneys.
• Carbon dioxide – this is caused by the burning of fuels such as coal, petrol and diesel and is the most important greenhouse gas, contributing to global warming and climate change.

 (Source: City of Cape Town - Air Quality)

National Water Act (No 36 of 1998)

The National Water Act recognizes that water is a natural resource that belongs to all people. 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 Act identifies sustainability and equality as the central guiding principles in the protection, use and management of water resources. These guiding principles recognise:

• the basic human needs of present and future generations
• the need to protect water resources
• the need to share some water resources with other countries, and
• the need to promote social and economic development through the use of water.

National government, acting through the Minister and Department of Water Affairs and Forestry, is responsible for achieving these basic principles. The Minister has the final responsibility to fulfill certain obligations relating to the use, allocation and protection of water resources.

Sectoral laws relating to the environment

Certain environmental laws apply to specific environmental issues such as 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.

So, for example, 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 about 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 licenses. You may also need to consider framework legislation such as the EIA provisions contained in NEMA. [delete]  If your quota or license application was refused you could consider using the Promotion of Administrative Justice Act to obtain reasons for the decision or to challenge the decision.

All relevant sectoral legislation has been listed according to the above three categories in the checklist at the end of this chapter. It is not possible to deal with the details of each of the laws listed. 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 on.  We have also listed relevant draft laws called Bills which the government is currently developing. These will replace many of the current laws in the future.

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 four-step plan for dealing with an environmental dispute:

• Step 1
  Establish which rights are infringed
• Step 2
  Work out what you want to do to address the infringement (for example, use the courts, hold a public demonstration or circulate a petition)
• Step 3
  Decide who to approach for help
• Step 4
  Decide what steps to take if you receive no response

(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)

Solving environmental disputes without going to court

There are different ways in which environmental disputes can be solved without going to court.

Public participation

Certain environmental laws provide public participation procedures 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 Environment Conservation Act, NEMA, National Forests Act and the Marine Living Resources Act.

The Promotion of Administrative Justice Act

This act sets out requirements for procedurally fair administrative action.  This ranges from notice and comment type procedures to public hearings. If the 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 friendly academics will probably be necessary. 

Environmental campaigns

Environmental issues are increasingly becoming the focus of public campaigns. These issues are often called green issues.  By drawing the attention of the government and developers to the facts it may be enough for 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. You can approach local community organisations to add pressure to the campaign. Local newspapers may help by publicising 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 organizations.

Trade unions

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 affect on the environments where communities live. For example, if a particular industry is dumping its poisonous waste products into a river which runs through a town, this can be very bad 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.

Lobbying local government

Many decisions affecting the environment take place at a local level. Although laws about environmental issues are made at national and provincial 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 council 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 which needs attention, you can go to the local council in your area and point this out to them. If they don’t take action then you can approach the relevant department in the national government. The national Department of Environment Affairs and provincial Departments of Nature Conservation are mainly responsible for environmental conservation. But other government departments will be involved if the issue is about providing safe and healthy environments for people. You could also lobby parliamentary portfolio committees.

See Lobbying.

Solving environmental disputes in the courts

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.

Legal Standing to bring a matter before the court

The law says that a person must have some personal interest in a matter if that person wants to bring that matter before the court. This rule (called the requirement of locus standi) has sometimes counted against a person who has wanted to raise an environmental issue with the court because it has been found that they do not have sufficient personal interest in the matter. However, the Constitution says that in addition to people acting in their own interest, the following people can also approach a court with regard to the issue of an infringement of a person’s right:

• anyone acting on behalf of another person who cannot act in their own name
• anyone acting as a member of, or in the interest of, a group or class of persons
• anyone acting in the public interest
• an association acting in the interests of its members
  

So 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, then an NGO could take action.

NEMA also says that a person can approach the court for relief for a breach, or threatened breach, of NEMA or any other environmental law if it is:

• in that person's or group of person's own interest
• in the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings
• in the interest of or on behalf of a group or class of persons whose interests are affected
• in the public interest and
• in the interest of protecting the environment

NEMA also contains some [deleted] provisions relating to the legal costs associated with taking a matter to court. It says that if a person brings a matter to court in the environmental or public interest and loses, the court does not have to order them to pay the costs of the winning party. In addition, if the person wins, the court can grant them certain additional legal costs to that which they would ordinarily have been entitled[deleted]. These provisions should assist people who wish to bring matters to court in the environmental or public interest.

Types of legal remedy

Statutory Remedies

The various laws listed above each provide legal remedies that are particular to the individual law. In order to use these remedies, you will need to determine which law is relevant to a person’s specific needs and, perhaps with the help of an attorney, decide how to use the specific law.

Ask the following questions when trying to establish which law applies to your client's query:

• What do NEMA or any of the other framework environmental laws say? (See Framework environmental laws, page 430)
• What other sectoral laws does the query relate to? For example, does it relate to pollution and waste management, land-use planning and development, natural resources or workers' environmental rights?

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 Interdict

The court can be approached to interdict a person from doing a harmful action, without going through the process of claiming damages.

See Interdicts.

There are three basic requirements for granting an interdict:

• there must be an action which can already be happening or about to start
• the action must be wrongful - this also means that the person asking for the interdict must have a clear right that is in need of protection
• the person asking for the interdict must have no other remedy available to him

Appeal and Review

Review

Review refers to the court's ability to question whether the procedure followed for the making of an administrative decision by government was correct. You can approach the court to review an administrative decision when you feel that correct procedures have not been followed when taking an administrative decision. For example, a factory has been set up without the people who live near the factory being given a chance to express their views on whether they want the factory to be built or not. 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 an attorney in order to apply for a review.

See What is a review?

Appeal

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?

Delictual Claim

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 is paid to you by the wrongdoer to compensate you for the harm you have suffered. You will need to consult an attorney to bring a delictual claim before the court.

See Law of Delict.

PROBLEM 1: Making complaints about environmental problems

A. Industrial fumes

A small factory in your neighbourhood is burning something that gives off fumes and clouds of smoke that make you feel ill.

What can you do?

Write a letter to the committee in the municipality that deals with environmental issues, reporting the matter and asking them to investigate.

B. Raw sewage

A sewerage treatment plant regularly overflows and raw sewerage is pumped into a river where children play.

What can you do?

Write a letter of complaint to the Department of Water Affairs and Forestry, and to the committee in the municipality that deals with water affairs.

C. Local Development

Your municipality is making a decision about a development that will change the environment in the area. You feel certain principles of NEMA haven't been followed in the planning process and you are afraid that the development will go ahead.

What can you do?

• Approach the full time council officials, like the Town Planning Department, and explain your concern. Ask for information about the development and which committees will be deciding the issue.
• Report your concerns and recommendations to the chairperson of the relevant local government committee that is responsible for making decisions regarding development. Ask them for feedback within a specified period of time.
• If the committee does not respond to your recommendations, write a letter of complaint to the council executive committee. Warn them if you believe they did not follow the right procedures or went against NEMA. Tell them you might go to court and challenge their decision.

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 set the decision aside.

PROBLEM 2: Appealing against government environment decisions

The government plans to use land in a certain way and you think is going to have a bad affect on the environment.

What can you do?

Write a letter appealing against the decision. In your letter:

• explain your complaint in detail
• say which NEMA environmental principle/s have been disobeyed (See What are the NEMA principles?)
• say which law has been broken and why you think the decision is unreasonable (See Checklist of sectoral laws)

If you are not satisfied with the result of your appeal you can ask the government to find and pay for a conciliator to try to solve the dispute.

PROBLEM 3: Complaining to the Director General

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:

• write a statement of the facts of the complaint
• add copies of all letters of complaint to other government officials and answers received
• add maps, photographs or video evidence, medical evidence of injury, and so on, if you have this

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 ask the government to find and pay for a conciliator to try to solve the dispute.

See National Environmental Management: Air Quality Act (No 39 of 2004)

PROBLEM 4: Applying for conciliation or arbitration

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). But the environmental impact assessment report does not take into account cultural needs, 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.

What can you do?

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 arbitrators decision will then be final.

PROBLEM 5: Harm to the environment

Employees can refuse work that harms the environment

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 empty field. You feel this is wrong and one day you tell the doctor why you think it is wrong. The doctor threatens to dismiss you.

What can you do?

You can tell the doctor that NEMA says you cannot be dismissed for refusing to do this.

Reporting activities that harm the environment

You work for a company that grows vegetables. One of your bosses is secretly using a banned pesticide on one of the farms in order to grow more vegetables.

What can you do?

You should report this to someone senior in the company.

If the activity carries on, you can report it to a committee of parliament or the provincial legislature, to the Public Protector, Attorney General or the South African Human Rights Commission. NEMA helps to protect you against being victimised for blowing the whistle on your boss.

CHECKLIST

Best action to take when dealing with environmental issues

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

Sectoral laws

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.

Land-use planning and development

Land Reform

• Upgrading of Land Tenure Rights Act (112 of 1991)
• Less Formal Townships Establishment Act (113 of 1991)
• Restitution of Land Rights Act (22 of 1994)
• Land Reform (Labour Tenants) Act (3 of 1996)
• Communal Property Associations Act (28 of 1996)
• Interim Protection of Informal Land Rights Act (31 of 1996)
• Extension of Security of Tenure Act (62 of 1997)
• Prevention of Illegal Eviction and Unlawful Occupation of Land Act (19 of 1998)
• Communal Land Rights Act (11 of 2004)

Planning

• The Development Facilitation Act (67 of 1995)
• Local Government Transition Act (209 of 1993)
• Local Government: Municipal Structures Act (117 of 1998)
• Local Government: Municipal Systems Act (32 of 2000)
• National Building Regulations and Building Standards Act (103 of 1977)

Environmental Assessment

• Environment Conservation Act 73 of 1989 and Regulations R 1182 to R 1184 in Government Gazette No. 18261 of 5 September 1997
• National Environmental Management Act 107 of 1998 (Chapter 5)
• Minerals and Petroleum Resources Development Act (28 of 2002)
• Marine Living Resources Act (18 of 1998)
• National Water Act (108 of 1997)

Protected Areas

• NEM: Protected Areas Act (57 of 2003)
• National Forests Act (84 of 1998)
• Environment Conservation Act (73 of 1989)
• World Heritage Convention Act (49 of 1999)
• National Heritage Resources Act (25 of 1999)
• Marine Living Resources Act (18 of 1998)

The Coast

• Maritime Zones Act (15 of 1994)
• Sea Shore Act (21 of 1935)
• ORV Regulations (GN R 1399 in Government Gazette No. 22960 dated 21 December 2001, as amended in 2004)
•  NEM: Coastal Management Bill (will repeal Sea Shore Act)

Natural Resources

Agricultural Resources

• Conservation of Agricultural Resources Act (43 of 1983)
• The Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act (36 of 1947)
• Agricultural Pests Act (36 of 1983)
• Foodstuffs, Cosmetics and Disinfectants Act (54 of 1972)
• Subdivision of Agricultural Lands Act (70 of 1970)
• Sustainable Use of Agricultural Resources Bill (will repeal the Conservation of Agricultural Resources Act)

Biodiversity and Genetic Modification

• NEM: Biodiversity Act (10 of 2004)
• Genetically Modified Organisms Act (15 of 1997)
• Plant Breeders Rights Act (15 of 1976)
• Plant Improvement Act (53 of 1976)
• Animal Improvement Act (62 of 1998)
• Conservation of Agricultural Resources Act (43 of 1983)

Wild animals, forests and plants

• Game Theft Act (105 of 1991)
• Animals Protection Act (71 of 1962)
• National Forests Act (84 of 1998)
• National Veld and Forest Fire Act (101 of 1998)

Living marine resources

• Marine Living Resources Act (18 of 1998)
• Sea Birds and Seals Protection Act (46 of 1973)

Water

• National Water Act (36 of 1998)
• The Water Services Act (108 of 1997)
• The Mountain Catchment Areas Act (63 of 1970)

Mining and energy

• Minerals and Petroleum Resources Development Act (28 of 2002)
• Nuclear Energy Act (46 of 1999)
• National Nuclear Regulator Act (47 of 1999)
• Mine Health and Safety Act (29 of 1996)
• Electricity  Act (41 of 1987)
• Petroleum Products Act (120 of 1977)

Heritage resources

• National Heritage Resources Act (25 of 1999)
• National Heritage Council Act (11 of 1999)

Pollution Control and Waste Management

Land

• National Environment Management Act (107 of 1998)
• Environment Conservation Act (73 of 1989)
• Health Act (63 of 1977)
• The Hazardous Substances Act (115 of 1973)
• Foodstuffs, Cosmetics and Disinfectants Act (54 of 1972)
• Minerals and Petroleum Resources Development Act (28 of 2002)
• Nuclear Energy Act (46 of 1999)
• National Nuclear Regulator Act (47 of 1999)
• Occupational Health and Safety Act (85 of 1993)
• NEM: Integrated Waste Management Bill (will replace Environmental Conservation Act)

Air

• Atmospheric Pollution Prevention Act (45 of 1965)
• NEM: Air Quality Bill (will replace Atmospheric Pollution Prevention Act)

Noise

• Noise Control Regulations (GN R 154 in Government Gazette No. 13717 of 10 January 1992 (made in terms of Section 25 of the Environment Conservation Act (73 of 1989))
• Aviation Act (74 of 1962)
• Road Traffic Act (29 of 1989)

Water

Fresh Water

• National Water Act (36 of 1998)
• Water Services Act (108 of 1997)
• National Environment Management Act (107 of 1998)
• Environment Conservation Act (73 of 1989)
• Health Act 63 of 1977 (Section 20 (1)(c))

Sea Water

• Sea Shore Act (21 of 1935)
• Maritime Zones Act (15 of 1994)
• Marine Traffic Act (2 of 1981)
• Merchant Shipping Act (57 of 1951)
• Wreck and Salvage Act (94 of 1996)
• Marine Pollution (Prevention of Pollution from Ships) Act (2 of 1986)
• Marine Pollution (Intervention) Act (64 of 1987)
• Marine Pollution (Control and Civil Liability) Act (6 of 1981)
• Dumping at Sea Control Act (73 of 1980)
• Regulations 86 and 87, 111 in Government Gazette No. 19205 of 2 September 1998 (promulgated in terms of Marine Living Resources Act 18 of 1998)

In the workplace

• Occupational Health and Safety Act (85 of 1993)
• Mine Health and Safety Act (29 of 1996)

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