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Chapter 11 - Environmental Law

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:

• 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) – this would probably be informed by the relief you are seeking as well as by what is provided for in the applicable laws
• Step 3
  Decide who to approach for help – this would depend on the relief sought

(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 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.

The Promotion of Administrative Justice 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 campaigns

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.

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 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.

Lobbying government

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.

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 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:

• 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

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:

• in that person's or group of person's 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 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.

Types of legal remedy

Statutory Remedies

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:

• What do NEMA or the other framework laws say? (See Framework environmental laws)
• What sectoral laws might apply? For example, does the query 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 performing 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 is already occurring or which is threatening (i.e. is about to occur);
• 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; and
• the person  requesting the interdict must have no other remedy available to him or her.

Appeal and Review

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

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 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.