<--- Back to contents

Chapter 11 - Environmental Law

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.