KIDD Environmental - Law 2011-1

Environmental Law
Environmental_Law.indb 1 2011/07/08 10:37 AM

Environmental Law
Second edition
MICHAEL KIDD
B Com LLB LLM PhD (Natal)
Professor of Law, University of
KwaZulu-Natal, Pietermaritzburg

First published 2008
Second edition 2011
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Preface
To be supplied

vi Environmental Law
To be supplied

Contents
Page no.
Preface ........................................................................................................................... v
Bibliography.................................................................................................................. xiv
Table of Statutes.............................................................................................................
Table of Cases................................................................................................................
Chapter 1: Introduction.............................................................................................. 1
1. The meaning of ‘environment’........................................................................... 1
2. The scope of environmental law........................................................................ 4
3. Environmental law: Distinctive principles?....................................................... 7
3.1 The polluter pays principle....................................................................... 7
3.2 The precautionary principle...................................................................... 9
3.3 Other principles......................................................................................... 10
4. The history of environmental law...................................................................... 12
5. The reasons for environmental law.................................................................... 14
Chapter 2: The Constitution and Framework Environmental Legislation............ 20

1. The Constitution of the Republic of South Africa, 1996.................................... 20
1.1 The environmental right............................................................................ 21
1.2 Other rights relevant to environmental management................................ 26
1.3 Division of legislative competence........................................................... 31
1.4 Division of administrative responsibility.................................................. 34
2. Framework environmental legislation: The National Environmental
Management Act................................................................................................ 35
2.1 The origins of NEMA............................................................................... 35
2.2 National environmental management principles....................................... 36
2.3 Institutions................................................................................................. 40
2.4 Environmental implementation and management plans........................... 40
2.5 Fair decision-making and conflict management....................................... 42
2.6 Integrated environmental management..................................................... 42
2.7 International obligations and agreements................................................. 42
2.8 Compliance, enforcement and protection................................................. 42
2.9 Environmental management co-operation agreements............................. 43
2.10 Administration.......................................................................................... 43
2.11 Assessment................................................................................................ 44
Chapter 3: International Environmental Law.......................................................... 45

1. Sources of international law............................................................................... 45
vii

viii Environmental Law
1.1 Treaties...................................................................................................... 45
1.2 Custom...................................................................................................... 46
1.3 General principles of law recognised by civilised nations........................ 46
1.4 Judicial decisions...................................................................................... 47
1.5 Juristic works............................................................................................ 47
1.6 The concept of jus cogens......................................................................... 47
1.7 Non-traditional sources: ‘soft law’............................................................ 47
2. Enforcement of international law....................................................................... 48
3. The status of international law within South Africa........................................... 48
4. History of international environmental law....................................................... 51
4.1 From early fisheries conventions to the creation of the United Nations
in 1945....................................................................................................... 51
4.2 The creation of the United Nations to the 1972 Stockholm Conference.. 52
4.3 Stockholm to UNCED (the Rio Conference) 1992................................... 53
4.4 UNCED and beyond................................................................................. 55
5. General principles of international environmental law...................................... 56
5.1 The principle of state sovereignty and responsibility not to cause
environmental damage.............................................................................. 57
5.2 The principle of good neighbourliness and international co-operation.... 58
5.3 Other principles......................................................................................... 58
6. Environment and trade....................................................................................... 59
7. Climate change................................................................................................... 60
8. Important international treaties.......................................................................... 61
8.1 International Convention for the Regulation of Whaling 1946 (ICRW)... 61
8.2 The Antarctic Treaty 1959......................................................................... 61
8.3 International Convention for the Conservation of Atlantic Tunas 1966... 61
8.4 International Convention on Civil Liability for Oil Pollution Damage
1969........................................................................................................... 61
8.5 African Convention on the Conservation of Nature and Natural
Resources 1968......................................................................................... 61
8.6 International Convention Relating to Intervention on the High Seas in
Cases of Oil Pollution Casualties 1969..................................................... 62
8.7 Convention on Wetlands of International Importance 1971 (Ramsar
Convention)............................................................................................... 62
8.8 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter 1972 (London Convention).............................. 62
8.9 Convention on International Trade in Endangered Species of Wild
Fauna and Flora 1973 (CITES)................................................................. 62
8.10 International Convention for the Prevention of Pollution from Ships
1973 (MARPOL)...................................................................................... 62
8.11 Convention Concerning the Protection of the World Cultural and
Natural Heritage 1975 (World Heritage Convention)............................... 62

Contents ix
8.12 Convention on the Conservation of Migratory Species of Wild

Animals 1979 (Bonn Convention)............................................................ 63
8.13 Convention on the Conservation of Antarctic Marine Living
Resources 1980 (CCAMLR)..................................................................... 63
8.14 United Nations Convention on the Law of the Sea 1982 (UNCLOS)...... 63
8.15 Vienna Convention for the Protection of the Ozone Layer 1985.............. 63
8.16 Convention on Assistance in the Case of a Nuclear Accident or
Radio-logical Emergency 1986 (Assistance Convention)........................ 63
8.17 Convention on Early Notification of a Nuclear Accident 1986
(Notification Convention)......................................................................... 64
8.18 Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal 1989 (Basel Convention).............. 64
8.19 Convention on the Ban of the Import into Africa and the Control of
Transboundary Movements and Management of Hazardous Wastes
within Africa 1991 (Bamako Convention)................................................ 64
8.20 Convention on Biological Diversity 1992................................................ 64
8.21 The Framework Convention on Climate Change (UNFCCC) 1992......... 64
8.22 Convention to Combat Desertification 1994............................................. 64
8.23 Kyoto Protocol (to the UNFCCC) 1997................................................... 64
8.24 Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade
(Rotterdam Convention) 1998.................................................................. 64
8.25 Convention on Persistent Organic Pollutants (Stockholm Convention)
2001........................................................................................................... 65
Chapter 4: Water Law and the Environment............................................................ 68

1. Brief history of South African water law........................................................... 69
1.1 The Water Act 54 of 1956......................................................................... 70
1.2 The transition from the 1956 Water Act to a new water law..................... 72
2. The National Water Act 36 of 1998.................................................................... 74
2.1 Water pollution and release of effluent..................................................... 81
3. The Water Services Act 108 of 1997.................................................................. 81
4. The National Water Resources Strategy............................................................. 83
5. Key implementation challenges......................................................................... 87
5.1 Over-bureaucratisation of the Act............................................................. 87
5.2 Water rights, the constitutional property clause and compensation for
expropriation............................................................................................. 88
5.3 The right of access to water and a basic water supply.............................. 90
5.4 Water quality concerns.............................................................................. 92
6. Conclusion................................................................................................................ 96

x Environmental Law
Chapter 5: Conservation of Biodiversity................................................................... 97

1. Common law...................................................................................................... 98
1.1 Game Theft Act 105 of 1991..................................................................... 99
2. Provincial nature conservation legislation......................................................... 100
3. National Environmental Management: Biodiversity Act 10 of 2004................. 102
3.1 Interpretation, objectives and application of the Act................................ 102
3.2 South African National Biodiversity Institute........................................... 104
3.3 Biodiversity planning and monitoring...................................................... 104
3.4 Threatened or protected ecosystems and species...................................... 106
3.5 Species and organisms posing potential threats to biodiversity................ 110
3.6 Bioprospecting, access and benefit-sharing.............................................. 112
3.7 Permits...................................................................................................... 113
3.8 Administration, offences and penalties, etc.............................................. 114
3.9 General comment...................................................................................... 114
4. Protected areas.................................................................................................... 115
4.1 National Environmental Management: Protected Areas Act 57 of 2003.. 115
4.2 Other protected areas................................................................................ 121
5. Conservation of components of biodiversity..................................................... 125
5.1 Wild animals............................................................................................. 125
5.2 Plants......................................................................................................... 125
5.3 Marine resources....................................................................................... 127
5.4 Endangered species................................................................................... 130
5.5 Soil............................................................................................................ 132
5.6 Wetlands.................................................................................................... 135
6. Specific threats................................................................................................... 137
6.1 Alien and invasive species........................................................................ 137
6.2 Genetically modified organisms................................................................ 138
7. Conclusion.......................................................................................................... 141
Chapter 6: Pollution Control and Waste Management............................................ 142

1. General principles..................................................................................................... 143
2. Common-law controls........................................................................................ 145
2.1 The law of nuisance.................................................................................. 145
2.2 Aquilian action.......................................................................................... 148
3. General pollution and environmental harm........................................................ 149
3.1 Section 28 of NEMA................................................................................. 149
3.2 Section 31A of the Environment Conservation Act.................................. 153
3.3 Emergency incidents................................................................................. 155
4. Air pollution....................................................................................................... 156
4.1 The National Environmental Management: Air Quality Act 39 of 2004.. 159
5. Pollution of fresh water...................................................................................... 167
5.1 National Water Act.................................................................................... 167

Contents xi
5.2 Disposal of trade effluent.......................................................................... 169

5.3 Other legislation addressing pollution of fresh water............................... 171
6. Marine pollution................................................................................................. 172
6.1 International marine pollution conventions.............................................. 172
6.2 South African marine pollution control legislation................................... 173
7. Waste on land..................................................................................................... 176
7.1 Environment Conservation Act 73 of 1989............................................... 177
7.2 National Environmental Management: Waste Act 59 of 2008.................. 177
7.3 Health Act 63 of 1977............................................................................... 189
7.3 Provincial legislation................................................................................. 190
7.4 Local legislation........................................................................................ 190
7.5 Evaluation................................................................................................. 190
8. Hazardous waste................................................................................................. 191
8.1 Medical waste........................................................................................... 193
9. Radiation............................................................................................................ 194
10. Noise pollution................................................................................................... 197
11. Pesticides............................................................................................................ 200
12. Safety in the work environment......................................................................... 205
13. Integrated pollution control................................................................................ 207
Chapter 7: Land Use and Planning............................................................................ 209

1. Land use and the common law................................................................................. 209
2. Land use and legislation........................................................................................... 210
2.1 The objects of land-use planning legislation............................................. 210
2.2 Town-planning legislation......................................................................... 211
2.3 Physical Planning Act 125 of 1991........................................................... 212
2.4 Subdivision of Agricultural Land Act 70 of 1970..................................... 213
2.5 Less Formal Townships Establishment Act 113 of 1991.......................... 214
2.6 Abolition of Racially Based Land Measures Act 108 of 1991................. 214
2.7 Development Facilitation Act 67 of 1995................................................. 215
2.8 National Environmental Management Act 107 of 1998........................... 218
2.9 National Heritage Resources Act 25 of 1999............................................ 218
2.10 Other legislation........................................................................................ 220
3. Mining and the environment.............................................................................. 221
4. Land use in the coastal zone............................................................................... 229
5. Environmental impact assessment..................................................................... 235
5.1 EIA under the Environment Conservation Act 73 of 1989....................... 236
5.2 Chapter 5 (Integrated Environmental Management) of NEMA................ 239
5.3 Analysis of EIA regime............................................................................. 257
Chapter 8: Implementation and Administration of Environmental Law............... 266

1. Administration by the state................................................................................ 266

xii Environmental Law
1.1 Who is the state?....................................................................................... 266

1.2 Types of administrative responsibilities.................................................... 266
2. Enforcement....................................................................................................... 268
2.1 Criminal sanctions..................................................................................... 269
2.2 Alternatives to the criminal sanction........................................................ 278
2.3 Economic instruments and self-regulation................................................ 280
3. Implementation by individuals........................................................................... 282
3.1 Locus standi.............................................................................................. 283
3.2 Private prosecution.................................................................................... 290
3.3 Implementation by individuals outside the courts.................................... 291
Chapter 9: Environmental Justice: A South African Perspective........................... 292

1. Introduction........................................................................................................ 292
2. Environmental justice in the USA...................................................................... 292
3. Environmental injustice in South Africa............................................................ 298
4. The meaning of environmental justice in South Africa...................................... 301
5. The pursuit of environmental justice in South Africa........................................ 303
5.1 The environmental right in the Constitution............................................. 303
5.2 Public participation in decision-making................................................... 304
5.3 Freedom of information............................................................................ 305
5.4 Environmental justice in the workplace.................................................... 306
5.5 Environmental protection versus employment......................................... 306
6. Conclusion.......................................................................................................... 307
Chapter 10: South Africa’s Position on Climate Change......................................... 308

1 Introduction........................................................................................................ 308
2 Context: South Africa’s greenhouse gas emissions profile................................ 308
3 South African policy relating to climate change................................................ 310
3.1 White Paper on the Energy Policy of the Republic of South Africa
1998........................................................................................................... 311
3.2 Integrated energy plan 2003...................................................................... 311
3.3 White Paper on the Renewable Energy Policy for the Republic of
South Africa 2003..................................................................................... 312
3.4 A National Climate Change Response Strategy for South Africa 2004.... 313
3.5 Long Term Mitigation Scenarios 2008...................................................... 316
3.6 Integrated Resource Plan for Electricity 2009.......................................... 316
3.7 Integrated Resource Plan 2 2010.............................................................. 317
3.8 Carbon tax discussion document............................................................... 317
3.9 National Climate Change Response Green Paper 2010............................ 318
4 South African law relating to climate change.................................................... 323
5 South Africa’s recent role in international climate change negotiations............ 325
6 Analysis.............................................................................................................. 326

Contents xiii
6.1 Continued reliance on coal........................................................................ 327

6.2 Will burning more coal reduce poverty?................................................... 328
6.3 Mitigation: The example of transport....................................................... 329
6.4 Adaptation................................................................................................. 331
7 Conclusion.......................................................................................................... 331

1
Introduction
Ten years into the twenty-first century, environmental issues are prominent in people’s
minds and they dominate political agendas. On the international plane, climate change
is the dominant issue, but other issues such as biodiversity1 loss, forestry and fishing are
also attracting significant attention. In South Africa, issues of service delivery are inex-
tricably linked with environmental concerns. For example, a recent government publica-
tion reported alarming non-compliance with laws relating to sewage purification, with
the resulting potential impact on scarce water supplies giving cause for great concern.2
Many people’s lives are dominated by concern over exposure to pollution, either in the
home or in the workplace, whilst others who may be fortunate to live in less polluted
areas are worried about threats to South Africa’s biodiversity. Almost every significant
physical development in South Africa today requires consideration of its environmental
impact before it can commence, and members of the public are closely involved in such
assessment processes. Fifteen years ago, it was relatively rare to find law firms in South
Africa specialising in environmental law — now it is uncommon to find medium to large
attorneys’ firms who do not claim to have environmental law departments. University
law faculties in South Africa have almost all introduced courses in environmental law
over the past fifteen years.
Environmental law is clearly an important part of the current legal agenda in South
Africa. But what is environmental law? In order to appreciate the scope of environmental
law, it is necessary to consider the meaning of ‘environment’.
1. The meaning of ‘environment’

The dictionary definition of ‘environment’ is ‘surrounding; surrounding objects, region,
or conditions, especially circumstances of life of person or society’.3 We can conclude
from this definition that the concept is a relative one, since it deals with the circumstances
surrounding something or someone. The definition is not too helpful for present purposes,
since law is a component of humans’ surrounding circumstances and therefore all law
is, according to this definition, environmental law. As Einstein is reported to have said,
‘The environment is everything that isn’t me’,4 and from this it is clear that the meaning
we require must be narrower.
1
‘Biodiversity’ can be defined as ‘the variability among living organisms from all sources including, ter-
restrial, marine and other aquatic ecosystems and the ecological complexes of which they are part and
also includes diversity within species, between species, and of ecosystems’ (definition from the National
Environmental Management: Biodiversity Act 10 of 2004. See below 97 for further discussion).
2
Department of Water Affairs Green Drop Report 2009 (2010). See, further, 93.
3
The Concise Oxford Dictionary 7 ed (1982).
4
Quoted by Simon Ball & Stuart Bell Environmental Law 2 ed (1994) at 4.

2 Environmental Law
Examination of various statutory definitions of the environment indicate that, while

there is a certain agreement as to what the core of the meaning is, there is no consensus
as to the exact meaning of ‘environment’. In the South African Environment Conserva-
tion Act,5 ‘environment’ means ‘the aggregate of surrounding objects, conditions and
influences that influence the life and habits of man or any other organism or collection
of organisms’.6 This is no narrower than the dictionary definition. Several other statutory
definitions from around the world also adopt an approach which could be described as
wide or extensive. Some of these are open-ended,7 whilst others are more specific, yet
still wide.8 These definitions bring us no closer to a meaning which will elucidate what
is meant by environmental law. On the other hand, other statutory definitions have a
narrower focus. The United Kingdom’s Environmental Protection Act of 1990 defines
the environment as consisting of ‘all, or any, of the following media, namely, the air,
water and land’.9 The Australian state of Tasmania has a similar definition.10 Such an
approach confines the concept to the physical environment. This entails not only the
natural environment, in the sense of the natural environment unaltered or unaffected by
human activities, but also human modifications to it. A shortcoming of these definitions,
however, is that they fail to include humans and other organisms within their ambit.
5
73 of 1989.
6
Section 1.
7
Examples are:
‘the environment … includes any matter or thing that determines or affects the conditions or influences
under which any animate thing lives or exists …’ (s 3 of the South Australia Environmental Protection
Act 1972);
‘“environment” includes all aspects of the surroundings of man, whether affecting him as an individual
or in his social groupings’ (s 4(1) of the (Australian) Commonwealth Environment Protection (Impact of
Proposals) Act 1974).
8
For example, s 1(c) of the Ontario [Canada] Environmental Assessment Act has the following definition of
environment:
‘(i) air, land or water;
(ii) plant and animal life, including man;
(iii) social, economic and cultural conditions that influence the life of man or a community;
(iv) any building, structure, machine or other device or thing made by man;
(v) any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from
the activities of man; or
(vi) any part or combination of the foregoing and the interrelationships between any two or more of
them.’
Section 1 of the New Zealand Resource Management Act 69 of 1991 contains the following definition:
‘“environment” includes—
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) amenity values; and
(d) the social, economic, aesthetic and cultural conditions which affect the matters stated in paras (a) to
(c) of this definition or which are affected by those matters.’
(‘Amenity values’ are ‘those natural or physical qualities and characteristics of an area that contribute to
people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes’.)
9
Section 1.
10
Section 2(1) of the Environment Protection Act of 1973 defines environment as the land, water and atmo-
sphere of the earth.

Introduction 3
The Victorian (Australia) Environment Protection Act of 1990, while focusing on the
physical aspect, does explicitly recognise animate objects, and includes the notion of
aesthetics as well.11 This is, however, perhaps too narrow a definition since it excludes
the interrelationships between the various components of the environment. This notion
is encompassed in New South Wales legislation,12 but the statutory definition which is
closer to the meaning that we seek is in the Queensland (Australia) Local Government
(Planning and Environment) Act of 1990. In this Act, ‘environment’ includes:
‘(a) ecosystems and their constituent parts including people and communities;
(b) all natural and physical resources;
(c) those qualities and characteristics of locations, places and areas, however large or
small, which contribute to their biological diversity and integrity, intrinsic or attrib-
uted scientific value or interest, amenity, harmony, and sense of community; and
(d) the social, economic, aesthetic and cultural conditions which affect the matters
referred to in paragraphs (a), (b) and (c) or which are affected by those matters.’13
As Fisher explains, this definition:
specifies physical, biological, ecological and human communities, intrinsic environmental val-
ues and the interrelationship between all these and their social, economic, aesthetic and cultural
contexts. [It] is sufficiently wide to include, on the one hand, specific elements of the environ-
ment and, on the other hand, the relationship between these elements which thus together com-
prise the concept of environmental value for this legislation.14
The South African legislature has progressed from the wide definition in the 1989 Envi-
ronment Conservation Act to a definition in the National Environmental Management
Act (NEMA)15 that accords with Fisher’s comments and, accordingly, is close to the sort
of definition we are seeking. The definition is:
‘the surroundings within which humans exist and that are made up of—
(i) the land, water and atmosphere of the earth;
(ii) micro-organisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and the interrelationships among and
between them; and
(iv) the physical, chemical, aesthetic and cultural properties and conditions of the
foregoing that influence human health and well-being.’16
11
Section 4(1) defines environment as ‘the physical factors of the surroundings of human beings including
the land, waters, atmosphere, climate, sounds, odours, tastes, the biological factors of animals and plants
and the social factor of aesthetics’.
12
Section 3(1) of the Protection of the Environment Administration Act, 1991, provides that:
‘“environment” means components of the earth, including:
(a) land, air and water; and
(b) any layer of atmosphere; and
(c) any organic or inorganic matter and living organisms; and
(d) human-made or modified structures and areas,
and includes interacting natural ecosystems that include components referred to in paras (a)-(c).’
13
Section 1.4(1).
14
DE Fisher Environmental Law: Text and Materials (1993) at 6–7.
15
107 of 1998.
16
Section 1.

4 Environmental Law
It is important that a definition of ‘environment’, while not being overly wide, does not
confine itself to the physical environment. The problem with the overly narrow approach,
particularly in a country such as South Africa, is that it tends to reinforce perceptions that
environmental concerns are concerns of middle-class (largely white) people, which are
not relevant to the majority of the population. Whilst this is a misinformed view, placing
people firmly within the definition of ‘environment’ plays down these perceptions. Many
people are adversely affected by environmental factors, such as pollution, and a defini-
tion such as that in NEMA would ensure that, for example, pollution that does not have a
significant effect on the physical (non-human) environment, but does have an impact on
human health, would be an environmental issue.
This discussion provides some pointers as to what is meant by ‘environment’, although
it is important to reiterate that there is not one universally accepted definition. For our
purposes, the definition in NEMA is a useful starting point as we return to our original
concern: what is environmental law?
2. The scope of environmental law

A look at various environmental law textbooks from around the world suggests that the
conventional way of identifying environmental law is by means of what Cowen calls the
‘subject-matter’ approach.17 This view posits that environmental law consists of all legal
principles which ‘have in common not so much their special character, but the subject
they regulate’.18 This subject is, in short, environmental management.19
If we analyse this further, two issues call for clarification. The first is to determine what
subject matter qualifies as falling under the general topic of environmental management.
There is probably substantial agreement that environmental law encompasses ‘public
health as well as conservation, pollution control, and land use control’.20 Thus pollution,
biodiversity conservation and land use planning would all be subjects embraced by envi-
ronmental law. The agreed subject matter corresponds largely with the core of agreement
about the meaning of ‘environment’, discussed above. But what about laws relating to
health and safety in the workplace and townscape conservation — are these environmen-
tal laws? The lack of consensus on these and similar issues makes it very difficult to state
dogmatically what subject matter is and is not covered by environmental law.
17
Denis V Cowen ‘Toward distinctive principles of South African environmental law: Some jurisprudential
perspectives and a role for legislation’ (1989) 52 THRHR 3 at 7.
18
Cowen (n 17), quoting RF Fuggle & MA Rabie Environmental Concerns in South Africa: Technical and
Legal Perspectives (1983) at 35.
19
See MA Rabie ‘Nature and scope of environmental law’ in RF Fuggle & MA Rabie Environmental Man-
agement in South Africa (1992) at 92.
20
Gregor I McGregor Environmental Law and Enforcement (1994) at 1. See also Michael C Blumm (ed)
Environmental Law (1992) at xi: ‘Environmental law is a loose amalgam of common law and (increas-
ingly) statutory provisions designed to protect public health, ecosystems and dependent animal and plant
species’.

Introduction 5
The second issue is to ascertain to what degree legal principles must relate to environ-
mental management to qualify as environmental law. Rabie approaches this question by
identifying a continuum of legal principles ranging from those which relate exclusively to
environmental management to those with no environmental relevance whatsoever, with a
number of categories in between.21 The different categories he identifies and a brief expla-
nation of each is as follows:22
(a) Exclusive environmental legislation23 aims exclusively at environmental manage-
ment and contains only environmentally specific norms (for example, the National
Environmental Management Act 107 of 1998).
(b) Legislation predominantly containing environmentally specific norms, calculat-
ed to promote an environmental object but with provisions other than those that
are environmentally specific (the Marine Living Resources Act 18 of 1998, for
example).
(c) Legislation incidentally containing environmentally specific norms, of which the
general purpose is not environmental conservation or management, but which in-
cludes individual provisions with that aim (for instance, the Health Act 63 of 1977).
(d) Legislation with direct environmental relevance, not calculated to further environ-
mental management, but comprising provisions that are of direct environmental
relevance (for example, the Physical Planning Act 125 of 1991).
(e) Legislation with potential environmental relevance, not aimed at environmental
management, but including provisions that are potentially of environmental signifi-
cance (the Income Tax Act 58 of 1962, for instance, could be used to provide for
deductions on machinery used for recycling).
(f) Legislation regulating environmental exploitation,24 for example mining legislation.
(g) Legislation with no environmental relevance.
Categories (a) and (b), according to Rabie, would qualify as environmental law, whilst
(g) would clearly not. Those norms in category (c) which are of environmental signifi-
cance would also qualify. The other three categories are more controversial. Rabie is of
the opinion that ‘purely exploitive legislation [ie (f)] would obviously not constitute envi-
ronmental law, but if legislation governing environmental exploitation contains provi-
sions which seek to minimise the harmful impact upon the environment, such provisions
should be regarded as establishing environmental law’.25 Yet Fowler, on the other hand,
suggests that environmental law, ‘viewed as a whole, extends to the appraisal of legal
measures which promote activity that is potentially detrimental to the environment. Such
measures, through their operation, influence environmental quality directly, even though
21
Rabie (n 19) at 92–5.
22
The examples provided are not the examples Rabie provided, but my examples reflecting current
legislation.
23
Rabie identifies various categories of legislation, pointing out at 95 that there are no common-law environ-
mental principles, although some common-law principles are directly or potentially relevant.
24
This is self-explanatory. Rabie points out that, even if nowadays legislation provides for the amelioration
of harmful impacts, it should still be regarded as falling under this category.
25
Rabie (n 19) at 95.

6 Environmental Law
they may not deal specifically with environmental matters or have environmental quality
as one of their principal policy objectives’.26 We will return to this issue shortly.
As far as the other two categories are concerned ((d) and (e)), whilst these provisions
are essentially neutral, surely they are environmental law when they are used for envi-
ronmental purposes? Rabie quotes conflicting authority in this respect,27 and himself
concludes that:
perhaps one should refer to environmental law in a narrow and a wide sense. It is significant that
while most commentators agree on the central core of environmental law, there is some differ-
ence of opinion as to peripheral areas, displaying a degree of arbitrariness in the treatment of
the subject matter.28
I would suggest that Rabie is being over-cautious here and that any legal principle
which relates to environmental management, whether directly or indirectly, or which
has an actual or potential impact on the environment, should fall within the purview
of environmental law. In my view, therefore, categories (d) and (e), when the provi-
sions are used in the environmental sphere, do qualify as environmental law. Moreover,
Fowler’s view that exploitative provisions are also environmental law is supported.
An environmental lawyer who concentrated only on the positive legal provisions and
ignored the negative ones would have a very blinkered view of environmental law.
Moreover, in order to appreciate the nature of environmental law, an environmental
lawyer should also be attuned to the ‘scientific, political and economic processes
involved in environmental [matters]’.29 This requires an interdisciplinary approach to
the consideration of environmental problems.
It is this interdisciplinarity which often makes the distinction between environmen-
tal law and policy a difficult one to draw, which further exacerbates our problems of
definition.
That said, however, the position taken here is that environmental law is identified by
the subject matter it governs. Is this an appropriate means of identification? Cowen thinks
not.30 Much of the basis of his position rests on the fact that the subject matter approach
views environmental law, as Hughes puts it, as ‘not a coherent, logical body of principles
and rules. What we have is a number of diverse laws relating to the environment’.31 Cowen
suggests that these diverse laws are inadequate since they were not designed to meet the
unique challenges of environmental problems.32 In addition, emphasis on environmental
law as ‘merely an amalgam of conventional laws without distinctive principles of its own …
tends to discourage the search for distinctive principles’.33 Cowen’s suggested solution was
26
Robert Fowler ‘Environmental law and its administration in Australia’ (1984) 1 Environmental and Plan-
ning Law Journal 10 at 18.
27
See Rabie (n 19) at 95.
28
Ibid at 95–6.
29
Ball & Bell (n 4) at 3.
30
Cowen (n 17) at 7. Note that from a purely positivistic perspective, Cowen concedes that at the time (1988)
this was probably the only way in which environmental law could be identified in South Africa. The crux
of his argument, however, was that a better approach should be sought.
31
D Hughes Environmental Law (1997) at 3.
32
Cowen (n 17) at 8.
33
Ibid at 9.

Introduction 7
to turn to legislation to provide these principles,34 based on his observation of other legal
systems which, ‘with legislation as the pace-setter, have already articulated and are actively
applying in the field of environmental law distinctive concepts, principles, rules, values,
remedies and procedures’.35
This raises two questions. The one is, assuming a future time when these principles
have been introduced by legislation, how does one then identify environmental law? Does
environmental law comprise only those laws which include these principles, excluding
other laws which may have relevance to the environment? It is submitted that the iden-
tification of environmental law by means of the subject matter approach does not inhibit
the development of such principles. In other countries, where distinctive principles have
developed (as Cowen suggests above), their textbook writers appear to use the subject
matter definition.36
Although environmental law does consist of a variety of legal principles which are
encountered in other ‘traditional’ branches of law, such as administrative law and the
law of material property, there appears to be no compelling reason why these principles,
when used in the environmental sphere, supplemented by whatever ‘distinctive’ envi-
ronmental law principles happen to be developed, should not be regarded as comprising
environmental law.
This brings us to the second question. What exactly are these distinctive principles
Cowen is talking about?
3. Environmental law: Distinctive principles?

Although different sources indicate that there are a number of distinctive environmental
law principles, there appears to be general agreement on only two of these: the ‘polluter
pays’ principle and the precautionary principle. It is necessary to explain the meaning of
these principles and to assess to what extent they are incorporated in law. Several other
principles that are not universally agreed upon will then be mentioned for the sake of
completeness.
3.1 The polluter pays principle

The Organisation for Economic Co-operation and Development first set out the principle
in 1974.37 At its most basic, the principle entails that a person involved in any polluting
activity should be responsible for the costs of preventing or dealing with any pollution
34
Ibid at 23ff.
35
Ibid at 12. Cowen may have been overstating the case: Ball & Bell (n 4), writing about the United Kingdom
in 1991, state that ‘environmental law is starting to acquire its own conceptual apparatus, in the sense
that there is being built up a set of principles and concepts which can be said to exist across the range of
subjects covered’ (at 7, emphasis added).
36
Cowen (n 17) at 11. See, for example, Blumm (n 20); Ball & Bell (n 4) at 7; W Rodgers Environmental Law
(1994) at 1; Fisher (n 14) at 1.
37
D Pearce Blueprint for a Green Economy (1989).

8 Environmental Law
caused by that activity, instead of passing these on to somebody else.38 This includes
both the costs of prevention and the costs of dealing with the consequences of pollution
already caused. The costs are not only costs incurred by humans, but also costs to the
environment itself. Thus it can be seen that the principle has both a proactive (preventive)
aspect and a reactive (compensatory) aspect.
A question that is often asked about the principle is whether it merely leads to the
polluter passing on the costs of pollution to consumers.39 Although this may seem at
odds with the principle at first glance, it ought actually to occur. This is because ‘the
price mechanism now signals the “true” costs of production to the consumer, comprising
normal costs of production and the hitherto free environmental inputs’.40 In any event,
Pearce demonstrates that, in practice, producers can only pass on part of the costs of pol-
lution to consumers: in general terms, the more competitive the market is for producers,
the less the burden of pollution charges the consumers will bear.41
This principle is obviously a desirable one to pursue if one is to reduce inefficient
economic externalities, but to what extent does it find expression in environmental law?
In South African law, the National Environmental Management Act (NEMA)42 expresses
the principle as follows:
‘The costs of remedying pollution, environmental degradation and consequent adverse
health effects and of preventing, controlling or minimising further pollution, envi-
ronmental damage or adverse health effects must be paid for by those responsible for
harming the environment.’43
Arguably, South African legislation does not adequately provide the mechanisms for
ensuring that this principle is realised comprehensively. Individual legal provisions are
consistent with the principle in respect of specific types of pollution or effects on specific
parts of the environment. It might be argued that s 28 of NEMA applies the polluter pays
principle, but this is done imperfectly as liability under that section is not confined to the
polluter. This is explored further in Chapter 6.
In international law, the polluter pays principle is recognised in several instruments.44
Possibly its best-known expression in international law, although in somewhat diluted
form, is in the Rio Declaration on Environment and Development.45
38
See Ball & Bell (n 4) at 97; Michael Purdue ‘Integrated pollution control in the Environmental Protection
Act 1990: A coming of age of environmental law?’ (1991) 54 Modern Law Review 534 at 536; A Kiss &
D Shelton International Environmental Law (1991); Pearce (n 37). Rabie (n 19), dealing with principles
that have been identified in German law, deals with the ‘originator principle’ (Verursacherprinzip), which
requires that the costs incurred in the avoidance or removal of environmental harm or in the compensation
for environmental damage should be borne by the person who was causally responsible for them (at 97).
This is essentially the same as the polluter pays principle.
39
See Purdue (n 38) at 536.
40
Pearce (n 37) at 158.
41
Ibid at 158 and 159.
42
Act 107 of 1998.
43
Section 2(4)(p).
44
See Philippe Sands Principles of International Environmental Law 2 ed (2003) 279–85.
45
Principle 16 reads: ‘National authorities should endeavour to promote the internalisation of environmental
costs and the use of economic instruments, taking into account the approach that the polluter should,
in principle, bear the costs of pollution, with due regard to the public interests and without distorting
international trade and investment.’

Introduction 9
3.2 The precautionary principle

This principle seems to have German origins, where it is known as the Vorsorgeprinzip.46
It essentially entails the application of preventive measures in situations of scientific
uncertainty where a course of action may cause harm to the environment.47 For example,
if either the safe or the hazardous nature of a chemical substance has not been proven by
science, it ought to be treated as hazardous until such time as it is proven to be safe. The
principle rests on the need to recognise that harm to the environment can be irreversible,
and therefore it is better to avoid any possible harm than to try to remedy it later. The lat-
ter course of action may be impossible (for example, reversing the extinction of a species)
or excessively costly.
It is clear that the principle cannot be an absolute one, since every development that
takes place runs the risk of causing some environmental damage that is unknown at the
time of the development taking place. For this reason, it is necessary to balance the degree
of likely risk with the cost of avoidance and the likelihood of the damage eventuating.48
It would seem that the principle is not consistently invoked,49 but it has been included in
a number of pieces of legislation and policy statements. Internationally, the principle has
found expression in the Maastricht Treaty of the European Union,50 and the Rio Declara-
tion on Environment and Development.51
Some examples from national legislation are also informative. In the United States, the
Clean Air Act 1982 requires emission standards to be set at levels which provide an ample
margin of safety.52 This has been the subject of court interpretation, where it has been held
that this does not entail risk-free standards, but that factors of cost and technical feasibility
can be taken into account. The overriding consideration, however, is that of an acceptable
margin of safety.53 In legislation from the Netherlands which deals with protection of the
soil and dangerous substances, it is provided that anyone who produces a substance, puts
it at the disposition of another, utilises or introduces it into the Netherlands, who knows or
reasonably should know that by his action the substance can present a danger for humans or
for the environment, has the duty to take all measures which could be reasonably demanded
of him or her in order to limit, as much as possible, the danger.54
46
Purdue (n 38) at 535.
47
See Rabie (n 19) at 97; Purdue (n 38) at 535–6; Kiss & Shelton (n 38) at 37–9.
48
Purdue (n 38) at 535; Kiss & Shelton (n 38) at 38–9. See also Sands (n 44) at 266–79; Patricia W Birnie &
Alan E Boyle International Law and the Environment 2 ed (2002) at 115–21.
49
Rabie (n 19) at 97–8; Birnie & Boyle (n 48). Cf Sands (n 44) at 279.
50
Article 130r(2) provides that European Community policy on the environment ‘shall be based on the
precautionary principle and on the principles that preventative action should be taken, that environmental
damage should as a priority be rectified at source and that the polluter should pay’.
51
Principle 15 provides ‘where there are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental
degradation’. For discussion of the Rio Declaration, see 55.
52
42 US Chapter 85.
53
Purdue (n 38) at 536.
54
Cited by Kiss & Shelton (n 38) at 38.

10 Environmental Law
In South Africa, NEMA provides that ‘a risk-averse and cautious approach [be] applied,
which takes into account the limits of current knowledge about the consequences of deci-
sions and actions’.55 It could be argued that environmental impact assessment legislation
is premised upon the precautionary principle. Possibly one of the more contentious appli-
cations of the precautionary principle is in the sphere of genetically modified organisms,
where it is arguable that South Africa’s legislation does not give proper effect to the
principle.56
3.3 Other principles

Below follows a list of principles regarded as fundamental or distinctive by some writers
and in some jurisdictions. As is the case with the two principles outlined above, they
are not consistently applied, but are discussed for purposes of information. In choosing
these principles, I am guided by the thorough analysis of Henderson,57 partly in response
to Cowen’s plea mentioned above. Following close consideration of the South African
Constitution and principles in NEMA (these are discussed in the next chapter), he con-
cluded that the following may be identified as distinctive principles of South African
environmental law:
●● Sustainable development (discussed at the end of this chapter);
●● Duty of care to avoid harm to the environment;
●● Precautionary principle (discussed above);
●● Life cycle responsibility;
●● Environmental justice (the subject matter of Chapter 9); and
●● Polluter pays principle (also discussed above).
He is also of the opinion that ‘the public trust doctrine [is viewed by some as] distinctive,
but it is submitted that in view of the significant uncertainties associated with the mean-
ing of this doctrine, it would be premature to describe it as such’.58
Let us briefly discuss the principles Henderson identifies that are not discussed else-
where, as well as some others that are widely mentioned in other sources.
The preventive principle

This principle requires that environmental degradation should be prevented.59 This
clearly cannot be an absolute principle, since pollution cannot be completely prevented as
it is an inevitable side-effect of human life.
55
Section 2(4)(a)(vii).
56
This is discussed further at 138ff.
57
Paul GW Henderson ‘Some thoughts on distinctive principles of South African environmental law’ (2001)
8 SAJELP 139.
58
Ibid at 183.
59
See Purdue (n 38) at 535.

Introduction 11
The principle of co-operation

This is usually identified as a principle of German environmental law,60 and presupposes
collaboration between the public and private sector in attaining environmental goals.
The duty of care to avoid harm to the environment

Also known as the environmental responsibility principle, it imposes on every entity
the duty to act with due care to avoid damage to others or to the environment, or where
impact on the environment is unavoidable, to mitigate harm. It also includes the notion
of remediation of past harm.61 This is provided for in s 28 of NEMA, which is discussed
at 149.
Life cycle responsibility

This principle is well described by Henderson as follows:
This principle envisages that a person who is initially responsible for producing a dangerous or
toxic substance should remain responsible for such substance for the life of that substance, until
it has been properly disposed of. In other words, the initiator of the dangerous or toxic substance
should remain responsible from the ‘cradle to the grave’.
Public trust
In its original form, the public trust doctrine expressed the view that when a state holds
a resource which is available for the free use of the general public, a court will look with
considerable scepticism upon any governmental conduct that is calculated either to real-
locate the resource to more restricted uses or to subject public uses to the self-interest of
private parties.62 The meaning in the South African context is expressed in the two main
statutory provisions relating to ‘trusteeship’, rather than public trust per se. In NEMA, it
is provided that ‘the environment is held in public trust for the people, the beneficial use
of environmental resources must serve the public interest and the environment must be
protected as the people’s common heritage’.63 In the National Water Act,64 the national
government, through the Minister, ‘as the public trustee of the nation’s water resources’,
is required to ‘ensure that water is protected, used, developed, conserved, managed and
controlled in a sustainable and equitable manner, for the benefit of all persons and in
accordance with its constitutional mandate’.65 In this regard, the Minister is ‘ultimately
responsible to ensure that water is allocated equitably and used beneficially in the public
interest, while promoting environmental values’.66
60
Rabie (n 19) at 97.
61
See Henderson (n 57) at 157–9.
62
See generally Illinois Central Railroad v Illinois 146 US 387 (1892); Henderson (n 57) at 172.
63
Section 2(4)(o).
64
Act 36 of 1998.
65
Section 3(1).
66
Section 3(2).

These principles have been examined in order, inter alia, to evaluate Cowen’s call
for legislation to provide distinctive principles of environmental law in South Africa, as
he says has happened in other countries. Several of these principles have indeed been
recognised in South African law and if their recognition is less than perfectly achieved,
this is no different from the situation in many other jurisdictions.
4. The history of environmental law

The focus thus far has been on environmental law as it is today. It is useful at this juncture
to examine the historical development of environmental law. It is important to examine
the law in the context of its origins in order to appreciate its nature and to understand the
rationale behind the law. This assists in evaluation of the law, particularly where reform
is under consideration. This section will be a brief overview of the development of envi-
ronmental law, tracing such development on both the international and South African
scales. As far as the South African focus is concerned, the discussion will be somewhat
superficial, since the historical context of individual legal principles and legislation will
be given elsewhere in the book.
It is a view generally held that the worldwide ‘watershed’ for environmental law, which
heralded the advent of the modern age of environmental law, was the early 1970s.67 This
is not to say that there was no environmental law before 1970, but the 1970s saw political
and legislative attention on environmental issues becoming more focused. Prior to the
1970s, and indeed for hundreds of years, there had been environmental laws. For exam-
ple, ‘laws affecting wildlife are at least as ancient as civilization’.68 Historical wildlife
law was primarily concerned with conserving wild animals so that the privileged classes
could hunt them, but nevertheless would qualify as environmental law. Another example
is the law influenced by the Industrial Revolution which was aimed at protection of public
health in the nineteenth century.
In South Africa, there were conservation statutes passed in the Cape from as early
as 1652 and most laws of an environmental nature passed from this time until the early
twentieth century were concerned with the conservation of natural resources, particularly
wildlife.69 Of particular note was the proclamation of various game reserves, primarily
between 1894 and the 1930s, some of them relatively soon after the world’s first national
park was proclaimed in Yellowstone in the United States.70 During the twentieth century
before 1970, a plethora of environmental legislation was passed in South Africa. Again,
this related mainly to the conservation of natural resources, often incidentally to the
primary focus of the Act (for example, the Water Act of 1956 included provisions aimed
both at counteracting pollution and conserving water, but the overall objective of the Act
was to cater for the supply of water to agriculture and industry). A number of Acts prom-
ulgated before 1970 have, until recently, been the principal pieces of legislation in their
67
MA Rabie & RF Fuggle ‘The rise of environmental concern’ in Fuggle & Rabie (n 19) at 11, 12, 18; Ball &
Bell (n 4) at 11; Albert Weale The New Politics of Pollution (1992) at 10.
68
George Cameron Coggins & Deborah Lyndall Smith ‘The emerging law of wildlife: A narrative bibliog-
raphy’ (1976) 6 Environmental Law 583 at 588.
69
For more detail on the historical development of environmental law in South Africa, see Rabie & Fuggle
(n 67) at 13–25.
70
Ibid at 11–12.

Introduction 13
areas, such as the Water Act and the Atmospheric Pollution Prevention Act.71 Pesticides
in South Africa are regulated by a 1947 Act: the Fertilizers, Farm Feeds, Agricultural
Remedies and Stock Remedies Act.72
Although there was significant legislative activity in the environmental sphere before
1970, this activity was piecemeal and could be fairly characterised as responding to envi-
ronmental issues on an ad hoc basis. This was certainly not only a South African trend,
but was true of the state of environmental law in other countries as well.
What, then, is magic about the 1970s as signalling a new direction? Probably one of
the important catalysts for change was the upsurge in public interest in environmental
matters in the late 1960s and early 1970s. Some of the factors which may have prompted
this interest were the publication of Rachel Carson’s hugely influential book Silent Spring
in 1962 and events like the Torrey Canyon disaster, where a supertanker spilled over
120 000 tons of oil in the western approaches to the United Kingdom in 1967. This inter-
est was reflected by the participation of twenty million Americans in Earth Day events
on 22 April 1970.73
The year 1970 is important also in that it was the year in which the National Environ-
mental Policy Act was promulgated in the United States of America. This was an Act
which addressed environmental issues on a programmatic basis, a departure from the
ad hoc legislation which had been the pattern up until then. Over the past twenty-five
years, most developed countries have enacted legislation which integrates environmental
concerns, for example, the United Kingdom’s Environment Act of 1990, New Zealand’s
Resource Management Act of 1991 and, in South Africa, the Environment Conservation
Act of 1989, which has subsequently been largely replaced by the National Environmental
Management Act 107 of 1998.
The environment has become a burning international issue as well. The Stockholm
Conference on the Human Environment in 1972 can be seen as marking a new ecologi-
cal era.74 The Declaration produced by the Conference contained twenty-four principles
which essentially constitute the first general text of international environmental law.
Other important international responses to global environmental problems of the latter
part of the twentieth century were the World Commission on Environment and Develop-
ment report Our Common Future;75 the Caring for the Earth initiative,76 and the so-called
‘Earth Summit’ in Rio de Janeiro in 1992.77 Ten years after Rio, the world came to Johan-
nesburg for the World Summit on Sustainable Development. Internationally, concerns
such as climate change and threats to biodiversity both generally and in respect of specif-
ics such as forests and marine resources, are highly prominent. A number of international
environmental instruments have been initiated recently to address such issues and are
frequently an important impetus behind domestic legislation.
71
Act 35 of 1965.
72
Act 36 of 1947.
73
Weale (n 67) at 10.
74
See below, 52ff.
75
WCED Our Common Future (1987). The Commission is often referred to as the ‘Brundtland Commission’
after its chairperson, the Norwegian Prime Minister.
76
World Conservation Union Caring for the Earth (1991).
77
United Nations Conference on Environment and Development 1992. For further discussion, see Chapter 5.

In South Africa, 1994 saw a new Constitution, a new government and a so-called ‘new
South Africa’. In the years since 1994, there has been a plethora of new environmental
legislation in South Africa. Two dominant themes running through these enactments are
environmental conservation, often heavily influenced by international legal trends, and
more equitable access to resources. Earlier conservation and environmental legislation in
South Africa was characterised by a ‘hands-off’ approach where, if access to resources
was allowed, this was generally limited to the privileged (mainly white) sector of the
population. This latter aspect is driven substantially by the egalitarian principles of the
Constitution. It is also becoming evident that South African courts are becoming more
attuned to environmental thinking and some epochal pronouncements have emanated
from certain judges. Much of the substantive focus of this book will be on this new
legislation.
5. The reasons for environmental law

Before leaving the introductory topics, it remains to ask the question: why do we need
environmental law? The answer, it is submitted, lies in the reasons why the environment
requires management. HLA Hart suggests that, in humans’ quest for survival, there are
certain truisms which dictate the ‘minimum content of natural law’.78 This content must
be incorporated in rules in order to ensure survival. One of the truisms is that resources
are limited: ‘these do not exist at hand in limitless abundance; but are scarce’.79 Hart
relies on this truism to demonstrate the need for ‘some minimal form of the institution
of property (though not necessarily individual property), and the distinctive kind of rule
which requires respect for it’.80 Were the learned author writing today, he would probably
use the same truism to show why laws relating to environmental management are neces-
sary: to ensure equitable access to natural resources for all humans, both those living now
and those yet to be born.
The idea of access to resources is an anthropocentric one, seeing the environment
as something for the benefit of humans. This is reflected in the utilitarian rationale for
environmental management.81 As Rabie indicates, ‘environmental law … is often aimed
at pollution control and the conservation of natural resources in order to ensure that the
environment remains useful to human beings rather than because it is seen as having
value in its own right’.82 Closely allied to the utilitarian approach is the position of the
law and economics movement, which focuses on economic efficiency. It is economically
inefficient to waste scarce natural resources, and therefore environmental management
and law is necessary. The environment is thus seen purely in economic terms.83
These anthropocentric reasons for conservation are undoubtedly strong arguments.
Major environmental issues of today can all be seen in these terms: global warming
will lead to the flooding of places where humans live and have other serious effects on
78
HLA Hart The Concept of Law 2 ed (1994).
79
Hart (n 78) at 196.
80
Ibid.
81
See JC Burger ‘Die wysgerige grondslae van omgewingsbewaring’ (1991) 6 SA Public Law 1 at 6–7; RF
Fuggle ‘Environmental management: An introduction’ in Fuggle & Rabie (n 19) at 8.
82
Fuggle (n 81) at 8, emphasis added.
83
Burger (n 81) at 7.

Introduction 15
humans; desertification reduces the land we have available for agriculture; deforestation
taken to its logical extreme will mean that humans will suffocate since there will be no
plants to recycle the carbon dioxide we exhale. Even the extinction of species has utilitar-
ian drawbacks: with the extinction of a species disappears the access to a possible cure for
disease or a resource like ivory or even just the ability to enjoy the experience of seeing
the species in real life. Yet such anthropocentric reasons for conservation are increasingly
coming to be seen as inadequate. Nature is more than a resource for humans.
The alternative view is to justify the conservation of nature in its own right. This is
based either on religious or other ethical considerations. From the religious perspective,
Judaism, Christianity and Islam all hold that a human being is not the Ultimate Being but is a
product of God’s creation, as is the earth and all plants and animals. All of creation — plant and
animal species, the land, the sea and its resources — is seen as being as much a part of God’s
creation as human beings, and also subject to God’s love and concern. Human beings reside in a
cosmos created by and belonging to God. They are an integral part of nature.84
These religious ethics thus require human beings to recognise that nature has a right to
exist over and above its utility to them. Human ethical responsibility for nature is not only
a concern of the religions already mentioned, as is evident from the Assisi declarations,
where religious leaders from the religions mentioned above, as well as those of Buddhism
and Hinduism, declared the adherence of their faiths to such responsibility.85
But concern for the environment as warranting respect and conservation in its own
right is not merely a religious dictate. Although not necessarily distinct from the religious
notion, there is Leopold’s famous ‘land ethic’:
All ethics so far evolved rest upon a single premise: that the individual is a member of a com-
munity of interdependent parts. His instincts prompt him to compete for his place in that com-
munity, but his ethics prompt him also to co-operate (perhaps in order that there may be a place
to compete for).
The land ethic simply enlarges the boundaries of the community to include soils, waters,
plants, and animals, or collectively: the land.86
Stone puts forward a similar notion, suggesting that ‘we are cultivating the personal
capacities within us to recognise more and more the ways in which nature … is like us
…’87 and ‘I do not think it too remote that we may come to regard the Earth … as one
organism, of which Mankind is a functional part — the mind, perhaps, different from the
rest of nature, but different as a man’s brain is from his lungs’.88
Another, more recent, approach, which echoes Stone, is the ‘deep ecology’ approach.
This approach ‘is emerging as a way of developing a new balance and harmony between
individuals, communities and all of Nature’.89 It involves ‘the cultivation of the insight
that everything is connected’ and ‘is grounded in a vision of nonexploitive science and
84
Fuggle (n 81) at 9.
85
Ibid at 10.
86
Aldo Leopold A Sand County Almanac (1966) at 219.
87
Christopher D Stone Should Trees Have Standing? — Toward Legal Rights for Natural Objects (1974) at
51.
88
Ibid at 52.
89
Bill Devall & George Sessions Deep Ecology (1985) at 7.

technology’.90 The ultimate norms of deep ecology are self-realisation and biocentric equal-
ity. The former entails the ‘process of the full unfolding of the self [which] can be sum-
marised by the phrase, “No one is saved until we are all saved”, where the phrase “one”
includes not only me, an individual human, but all humans, whales, grizzly bears, whole
rain forest ecosystems, mountains and rivers, the tiniest microbes in the soil, and so on’.91
The central idea of biocentric equality is that ‘all organisms and entities in the ecosphere, as
parts of the interrelated whole, are equal in intrinsic worth’.92 It is related to self-realisation
in the sense that if humans harm the rest of nature they are harming themselves.93
An approach that shares similarities with the deep ecology approach has been posited
by a South African environmental lawyer, Cormac Cullinan. His idea, called ‘Wild Law’,
involves the following:
1. We humans are an integral and inseparable part of the Earth system.
2. This essential unity means that humans and our social systems are inextricably embedded
within, and influenced by, the context of the larger Earth Community.
3. Therefore, the way we govern ourselves must of necessity be consistent with this context
and must have as a purpose to ensure that the pursuit of human wellbeing does not under-
mine the integrity of Earth, which is the source of our wellbeing.
4. Human fulfilment is unattainable outside of a web of healthy relationships within the
wider community of life on Earth.
5. Only by creating a jurisprudence that reflects the reality that human societies are part of
a wider Earth Community, and must observe certain universal principles, will we be able
to begin a comprehensive transformation of our societies and legal systems.
6. In order to reorient our governance system to reflect this Earth jurisprudence we need to
establish laws that are “wild” at heart in the sense that they foster, rather than stifle, crea-
tivity and the human connection to nature.
7. To implement wild laws effectively we will need to cultivate personal and social practices
that respect Earth, and social structures based on communities, and communities of com-
munities, as found in nature.94
This idea, which shares elements of James Lovelock’s Gaia hypothesis,95 is clearly not
descriptive of current approaches to environmental conservation and law, but a request
for a different approach — a normative approach, in other words. The Wild Law approach
has attracted considerable support, particularly in the United Kingdom, where several
Wild Law conferences have been held.96
It is not possible in a discussion on this issue to conclude that there is one objectively
‘right’ rationale for conservation and environmental management. The purpose of this dis-
cussion is simply to identify some of the reasons for managing the environment, although
the discussion is certainly not exhaustive. Commitment to conservation, be it by an indi-
vidual or a legislature, will be justified on the basis of a choice between these approaches or
a combination of them as is seen to be appropriate in the circumstances. In practice, most
90
Devall & Sessions (n 89) at 8.
91
Ibid at 67.
92
Ibid.
93
Ibid at 68.
94
Cormac Cullinan Wild Law (2002) at 223–4.
95
See James Lovelock Gaia: A New Look at Life on Earth (1979) and sequels to that book.
96
See Begonia Filgueira ‘How wild did it get?’ (2006) 18 Environmental Law & Management 24. Two issues
of the English journal Environmental Law & Management have been largely dedicated to wild law: volume
18 (2006) and volume 19 (2007).

Introduction 17
environmental law is probably premised more on the utilitarian approach. If there appears
a bias in this book towards this rationale, it is to reflect the reality, not to attach any greater
normative weight to the utilitarian approach.
Utilitarianism entails conservation with a view to human use, but how exactly are
natural resources to be used in order to conserve them? The answer, it is submitted, is
encapsulated in an environmental concept that arguably underpins the principles dis-
cussed earlier in this chapter and all environmental law: ‘sustainable development’.
Although now ‘sustainable development’ is a term capable of numerous definitions
(often depending on the user’s agenda), the concept of sustainable development was gen-
erally considered to have been coined by the World Commission on Environment and
Development. The WCED defined it as ‘development that meets the needs of the present
without compromising the ability of future generations to meet their own needs’.97 Two
concepts are fundamentally tied to the idea of sustainable development. One is that the
basic needs of humanity (food, clothing, shelter and employment) must be met. The other
is that ‘the limits to development are not absolute but are imposed by present states of
technology and social organisation and by their impacts upon environmental resources
and upon the biosphere’s ability to absorb the effect of human activities’.98
Sands, in his analysis of the term in the context of international agreements, identifies
four ‘recurring elements’:
1. the need to preserve natural resources for the benefit of future generations (the principle
of intergenerational equity);
2. the aim of exploiting natural resources in a manner which is ‘sustainable’, or ‘prudent’, or
‘rational’, or ‘wise’ or ‘appropriate’ (the principle of sustainable use);
3. the ‘equitable’ use of natural resources, which implies that use by one state must take
account of the needs of other states (the principle of equitable use, or intragenerational
equity); and
4. the need to ensure that environmental considerations are integrated into economic and
other development plans, programmes and projects, and that development needs are taken
into account in applying environmental objectives (the principle of integration).99
Along similar lines, Field argues that sustainable development has at its core the prin-
ciples of ‘seeing rightly’ and equity.100 ‘Seeing rightly’ means knowledge of the earth’s
systems, including appreciation of the linkages between human economic and social sys-
tems and the environment. This aspect is related to the principle of integration, the pre-
cautionary principle and the preventive principle. Whereas ‘seeing rightly’ is based on
scientific fact, equity is derived from moral choices and involves inter- and intra-genera-
tional equity, which entails transformation of behaviour and redress of past unsustainable
practices.
One often encounters the idea of the ‘three pillars’ of sustainable development — eco-
nomic, social and environmental. These three pillars are equally important and must
97
WCED Our Common Future (1987) at 43.
98
Ibid. This quote from Our Common Future: A Reader’s Guide at 7.
99
Sands (n 44) at 253. For further detail, see Sands at 252–66.
100
Tracy-Lynn Field ‘Sustainable development versus environmentalism: Competing paradigms for the
South African EIA regime’ (2006) 123 SALJ 409 at 414–17.

be pursued simultaneously and with equal effort. A useful analogy is an African three-
legged cooking pot: unless all the legs are equal in length and strength the pot will be
unstable.
The concept of sustainable development was the key focus of the 1992 United Nations
Conference on Environment and Development101 and the 2002 World Summit on Sustain-
able Development, and it is seen as underpinning the development of international envi-
ronmental law.102 On the national scale, it is arguably the cornerstone of South Africa’s
environmental law. The National Environmental Management Act, reflecting the ‘three
pillars’ idea mentioned above, provides that ‘development must be socially, environmen-
tally and economically sustainable’.103 This statement of principle is then expanded upon
in the setting out of several ‘national environmental management principles’, which are
binding on all organs of state in the country.104 The concept of sustainable development
and the three pillars approach was a central feature of the landmark Constitutional Court
decision in Fuel Retailers Association of Southern Africa v Director-General: Envi-
ronmental Management, Department of Agriculture, Conservation and Environment,
Mpumalanga Province,105 discussed later in this book.106
An understanding of the concept of sustainable development is therefore vital for an
appreciation of the role of environmental law in modern society. Having said that, there
are criticisms of the idea of sustainable development (as it is an infinitely flexible concept
that can be used to justify all manner of activities) and it would be useful to examine
another justification for conserving the environment (and for legal mechanisms aimed at
doing so) that is becoming influential: planetary boundaries.
A group of 28 internationally renowned scientists identified nine ‘planetary bounda-
ries’, which, if transgressed, may be devastating for humanity.107 If, on the other hand,
they are respected, the future of humanity will be secured. As the scientists say, ‘Human-
ity … needs to become an active steward of all planetary boundaries — the nine identi-
fied in this paper and others that may be identified in the future — in order to avoid risk of
disastrous long-term social and environmental disruption.’108 Unfortunately, at least three
of the boundaries (which are all interconnected) may already have been transgressed,
although not irreversibly so. The boundaries are: stratospheric ozone layer, biodiversity,
chemicals diversion, climate change, ocean acidification, freshwater consumption and
the global hydrological cycle, land system change, nitrogen and phosphorus inputs to
the biosphere and oceans, and atmospheric aerosol loading.109 This is depicted in the
figure below, showing estimates of how the different control variables for seven planetary
101
Discussed at 55.
102
See Sands (n 44) at 53.
103
Section 2(3).
104
This is discussed further at 36ff.
105
2007 (6) SA 4 (CC).
106
At 25 and 259.
107
Johan Rockström et al ‘Planetary boundaries: Exploring the safe operating space for humanity’ (2009) 14
Ecology and Society 32.
108
Ibid.
109
For further detail on these boundaries, see Stockholm Resilience Centre ‘The Nine Planetary Boundaries’
at http://www.stockholmresilience.org/research/researchnews/tippingtowardstheunknown/thenineplanet
aryboundaries.4.1fe8f33123572b59ab80007039.html (accessed 18 October 2010).

Introduction 19
boundaries have changed from 1950 to present. The green shaded polygon represents the
safe operating space.
Climate change
Chemical pollution
Not yet quantified Ocean acidification
Stratospheric ozone
Atmospheric depletion
aerosol loading
Not yet quantified
Nitrogen cycle
(biogeochemical
flow boundary)
Biodiversity Phosphorus cycle
loss (biogeochemical
Land system flow boundary)
Global freshwater
change use
Figure 1: Planetary Boundaries110
Having investigated the meaning of environmental law, its history and the reasons behind
it, it is now necessary to explore how it operates: Chapter 2 examines the Constitution and
framework environmental legislation.
110
Stockholm Resilience Centre. Figure found at http://www.stockholmresilience.org/research/research-
news/tippingtowardstheunknown/quantitativeevolutionofboundaries.4.7cf9c5aa121e17bab42800043444.
html (accessed 18 October 2010).

2
The Constitution and
Framework Environmental
Legislation
Given the fact that environmental concerns are relatively recent, the South Africa com-
mon law contains little that is directly concerned with environmental conservation,
although there are a number of common-law principles that are relevant in environmental
law. The greater part of environmental law, therefore, consists of legislation. The body
of legislation that makes up South African environmental law (and this would be true of
most countries) is primarily issue-specific, dealing with specific environmental issues
such as pollution of certain media (eg air, water), conservation of wildlife, protected areas
and the like. In addition to the numerous statutes of this type, there are also certain stat-
utes which could be described as ‘framework’ laws in that they address environmental
issues that straddle all (or most of) the individual spheres of environmental manage-
ment. Environmental governance and principles of environmental management would be
examples of the focus of framework legislation.
Whilst not typical legislation, the Constitution of the Republic of South Africa, 1996,
also operates as a framework within which South Africa’s environmental legislation must
operate. This is because the Constitution contains what could be called an environmental
right, and because the Constitution provides for the allocation of responsibilities amongst
the different spheres of government in the country.
This chapter will consider both the Constitution and South Africa’s framework envi-
ronmental legislation, as an umbrella within which to consider the ‘specific’ environ-
mental legislation covered in the following chapters, commencing with the Constitution.
1. The Constitution of the Republic of South Africa, 1996

South Africa’s legal system was brought into a new era in 1994 with the enactment of
a new Constitution including a bill of fundamental human rights.1 There are various
aspects of the Constitution which are important for environmental law, probably the most
noteworthy of which is the environmental right in the Bill of Rights. Although a consti-
tutional environmental right is by no means unique,2 most of the countries which have
well-developed systems of environmental law do not have such a right. The Constitu-
1
The Constitution of the Republic of South Africa of 1993, the so-called interim Constitution, which came
into effect on 27 April 1994.
2
See Terry Winstanley ‘Entrenching environmental protection in the new Constitution’ (1995) 2 SAJELP
85 at 87; Carl Bruch, Wole Coker & Chris van Arsdale ‘Breathing life into fundamental principles: Imple-
menting constitutional environmental protections in Africa’ (2000) 7 SAJELP 21.
20

The Constitution and Framework Environmental Legislation 21
tion is also important from the perspective of division of legislative and administrative
responsibilities between the different spheres of government: national, provincial and
local.
1.1 The environmental right

It is possible to identify essentially two kinds of environmental rights: the rights of
humans to a safe and healthy environment, and the rights of the environment itself not
to be degraded. The latter were the subject of a seminal article by Christopher Stone in
which, to put it simply, he proposed that the environment (ie trees, rocks, rivers and so on)
ought to be accorded rights in order that it might best be protected against degradation.3
The idea does not appear to have found official favour anywhere in the world and it would
seem that South Africa is a long way off this type of development, particularly consider-
ing the fact that human rights generally have only recently been accorded constitutional
protection.
In order to appreciate the nature of the human right to a healthy environment, it is
necessary to examine the nature of rights generally. Traditional rights discourse has cat-
egorised human rights into three different categories or ‘generations’. First generation or
‘blue’ rights are civil and political rights of individuals. Examples are the right to equal-
ity, the right to life, and the right to freedom of association. These are conventionally
enforced in a negative fashion in that individuals enjoy the rights without the state having
to provide anything. Instead the state is required to refrain from infringing these rights.
Second generation or ‘red’ rights are social, economic and cultural rights. These rights,
like the right to work, food and housing, tend to require positive action by the state. This
fact makes these rights somewhat controversial, since it is difficult for courts to enforce
them. Third generation or ‘green’ rights have been referred to as ‘people’s or solidarity
rights’.4 These rights, including environmental rights, the right to development and the
right to peace, are usually exercised as group rights. In other words, they are rights of the
public at large rather than rights of specific individuals.
As far as the environmental right is concerned, such a right has been incorporated
in the constitutions of many countries.5 The environmental right has been given dif-
ferent emphases in different constitutions. Some confer an environmental human right.
Some require the government to protect natural resources and the environment, either by
declaring formal policies or by passing specific legislation to this end. Such rights impose
positive obligations on the state. Another approach is to impose a duty on the country’s
citizens to protect and conserve the natural environment.6
3
Christopher Stone ‘Should trees have standing? — Towards legal rights for natural objects’ 1972 Southern
California Law Review 450. See also Stone ‘Should trees have standing? revisited: How far will law and
morals reach? A pluralist perspective’ 1985 Southern California Law Review 1.
4
Jan Glazewski ‘The environment, human rights and a new South African Constitution’ (1991) 7 SAJHR
167 at 172.
5
More than fifty countries have constitutionally entrenched environmental rights: Winstanley (n 2) at 87. In
Africa, more than thirty have such rights: see Bruch et al (n 2).
6
For examples, see Glazewski (n 4) at 172–5.

South Africa’s environmental right is contained in s 24 of the 1996 Constitution,7

which reads:
‘Everyone has the right—
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future genera-
tions, through reasonable legislative and other measures that —
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development[.]’8
There are two parts to this right — paragraph (a) is a fundamental human right, while
paragraph (b) is more in the nature of a directive principle requiring the state to take
positive steps towards the attainment of the right. Let us consider each paragraph in turn.
The phrase ‘everyone has the right to an environment that is not harmful to their
health or well-being’ encompasses two aspects: the right to an environment not harmful
to health and the right to an environment not harmful to well-being. Both revolve around
the meaning of ‘environment’. This was discussed in Chapter 1, both generally and in the
context of how it is defined in South African legislation. The definition in the National
Environmental Management Act is (arguably) relatively narrow, referring to what could
be referred to as the ‘natural’ environment and humans’ place therein.9 It is submitted that
it would be unacceptable to confine the meaning of ‘environment’ in s 24 so narrowly,
and that it should be considered more widely and more in line with the dictionary mean-
ing of humans’ surroundings (given that it is a human right). This would ensure that the
right is not unacceptably limited.
The ‘health’ aspect of the right is not particularly novel, since, under the common law,
the right to health would have been recognised, at least in some respects. For example,
a person seeking to interdict a nuisance on the basis of that activity’s impact on the
applicant’s health would be able to rely on the right to health under the common law.10
A second observation relating to the right to health encompassed in s 24 is that it must
be distinguished from the right of access to health care services in s 27.11
‘Well-being’, on the other hand, is more novel. It is only relatively recently that the
courts have had occasion to consider the meaning of this phrase. In HTF Developers
(Pty) Ltd v The Minister of Environmental Affairs and Tourism,12 Murphy J suggests that
the term is
open-ended and manifestly … incapable of precise definition. Nevertheless it is critically
important in that it defines for the environmental authorities the constitutional objectives of
their task.13
7
For a full discussion of the evolution of this right, see Environmental Law: A South African Guide at 37.
8
Section 24.
9
See discussion above, 1ff.
10
See Verstappen v Port Edward Town Board 1994 (3) SA 569 (D) at 577H.
11
See Jan Glazewski Environmental Law in South Africa 2 ed (2005) at 76–7.
12
2006 (5) SA 512 (T).
13
At para [18].

He quotes Glazewski (seemingly with approval) as follows:

In the environmental context, the potential ambit of a right to ‘well-being’ is exciting but poten-
tially limitless. The words nevertheless encompass the essence of environmental concern,
namely a sense of environmental integrity; a sense that we ought to utilise the environment in a
morally responsible and ethical manner. If we abuse the environment we feel a sense of revul-
sion akin to the position where a beautiful and unique landscape is destroyed, or an animal is
cruelly treated.14
The concept ‘well-being’ is also considered, less directly, in Hichange Investments (Pty)
Ltd v Cape Produce Co (Pty) Ltd t/a Pelts Products.15 In this case, exposure to a ‘stench’
was regarded as being adverse to one’s health and well-being.16
An impact on well-being is not, however, confined to situations where there is a direct
impact on a person (as in the Hichange case). It is submitted that well-being includes
notions of concern for the aesthetic and spiritual dimension of the natural environment,
including the idea of ‘sense of place’.17 This means that a person’s well-being may be
detrimentally affected when there is a threat or damage to the environment in a place that
is not only geographically distant from that person but also somewhere that person has
never been nor intends to go in the future. For example, a person in Johannesburg may
legitimately allege that her environmental well-being is detrimentally affected by a threat
to the natural environment at St Lucia, one of South Africa’s World Heritage Sites. This
raises the idea that knowledge or reasonable anticipation of a threat to the environment
anywhere may have an impact on a person’s environmental well-being.
Paragraph (b) is ‘more in the nature of a directive principle, having the character of a so-
called second generation right imposing a constitutional imperative on the state to secure
the environmental rights by reasonable legislation and other measures’.18 These measures
must be aimed at the objectives stated in paragraph (b). The Constitutional Court has had
an opportunity to consider how the state is to meet this type of constitutional obligation,
albeit not in the environmental sphere, but in Government of the Republic of South Africa
v Grootboom,19 where Yacoob J said:
The State is required to take reasonable legislative and other measures. Legislative measures
by themselves are not likely to constitute constitutional compliance. Mere legislation is not
enough. The State is obliged to act to achieve the intended result, and the legislative measures
will invariably have to be supported by appropriate, well-directed policies and programs
implemented by the Executive. These policies and programs must be reasonable both in their
conception and their implementation. The formulation of a program is only the first stage
in meeting the State’s obligations. The program must also be reasonably implemented. An
otherwise reasonable program that is not implemented reasonably will not constitute compliance
with the State’s obligations.20
14
Jan Glazewski Environmental Law in South Africa (2000) at 86. This passage does not appear in the
second edition of the author’s work (see n 11), but the overall views expressed are similar.
15
2004 (2) SA 393 (E).
16
Ibid at 415.
17
See Glazewski (n 11) at 77.
18
HTF Developers (n 12) at para [17].
19
2001 (1) SA 46 (CC).
20
Ibid at para [42]. See discussion of Grootboom in the context of s 24 of the Constitution in BP Southern
Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124
(W) per CJ Claassen J at 142.

Such programmes must be ‘balanced and flexible’.21 The Grootboom case is also illustra-
tive of how such a constitutional clause may be adjudicated upon by the courts.
Section 24(b) provides that everyone has the right ‘to have the environment protected,
for the benefit of present and future generations, through reasonable legislative and other
measures’. The word ‘protected’ is used rather than the more currently acceptable concept
‘conserved’, although it is unlikely that this was a deliberate choice. Clearly deliberate, on
the other hand, was the insertion of the phrase ‘for the benefit of present and future gen-
erations’, which was absent in the draft final Constitution.22 This incorporates the notion
of intergenerational equity, which is internationally recognised and can be described as
the idea that as ‘members of the present generation, we hold the earth in trust for future
generations’.23
The reasonableness of the ‘reasonable legislative and other measures’ required to be
taken in order for the right to be realised is illuminated by the comments of the Consti-
tutional Court in the Grootboom case mentioned above. ‘Legislative measures’ needs
no explanation and it would seem, judging by the significant legislative activity in the
environmental field in the new Constitutional era, that compliance with this has been
substantial. What is meant by ‘other measures’? As suggested in the extract from the
Grootboom judgment above, this would incorporate policies and programmes but also,
surely, implementation of the legislative measures.
This discussion of s 24(b) simply assumes that this responsibility is directed at the
state. That is not made explicit in the wording of the section, but clearly only the legisla-
ture can carry out legislative measures. ‘Other measures’ also clearly applies to the state,
but is it confined to the state? According to s 8(2) of the Constitution, ‘a provision of the
Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable,
taking into account the nature of the right and the nature of any duty imposed by the
right’. Given that non-state entities may (and often do) act in a way that is detrimental to
the environment, it could be argued that s 24 does apply to natural and juristic persons
as well, especially in so far as ‘other measures’ are concerned. It is difficult to think
what positive measures this would envisage, but it could extend to the notion that private
bodies should not do anything that harms the environment. This would entail compliance
with the provision in a negative sense — not doing anything to undermine protection of
the environment.
The last aspect of the environmental right in s 24 that warrants discussion is the objec-
tives listed in paragraph (b), particularly the third. The reasonable legislative and other
measures must:
‘(i) prevent pollution and ecological degradation;
21
Ibid at para [43].
22
See ‘Report on the proceedings of the workshop on the Constitution and the environment, Pietermaritz-
burg, 2–3 February 1996’ (1996) 3 SAJELP.
23
E Brown Weiss ‘Our rights and obligations to future generations for the environment’ (1990) 84 AJIL 198
at 199. See Philippe Sands Principles of International Environmental Law 2 ed (2003) at 256–7 for further
discussion of the concept, including reference to international treaties and cases in which the principle has
been recognised.

(iii) secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.’
The first two require little discussion; although the observation could be made that
phrase (ii) is incomplete, since it does not refer to the object of the conservation (which is
assumed, due to the context, to be the environment). The third item is interesting because
it, somewhat clumsily, expressly provides for the concept of sustainable development.24
The Constitutional Court had occasion to consider the right and, in particular, the last
subsection (referring to sustainable development) in the case of Fuel Retailers Associa-
tion of Southern Africa v Director General: Environmental Management, Department
of Agriculture, Conservation and Environment, Mpumalanga Province.25 The court
referred to the ‘explicit recognition of the obligation to promote justifiable “economic
and social development”,’26 and went on to state that the Constitution:
contemplates the integration of environmental protection and socio-economic development. It
envisages that environmental considerations will be balanced with socio-economic considera-
tions through the ideal of sustainable development.… Sustainable development and sustainable
use and exploitation of natural resources are at the core of the protection of the environment.27
Later in the judgment, the court observed that:

(t)he role of the courts is especially important in the context of the protection of the environment
and giving effect to the principle of sustainable development. The importance of the protection
of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights
contained in the Bill of Rights; indeed, it is vital to life itself. It must therefore be protected for
the benefit of the present and future generations. The present generation holds the earth in trust
for the next generation. This trusteeship position carries with it the responsibility to look after
the environment. It is the duty of the Court to ensure that this responsibility is carried out.28
The sentiments expressed in the Fuel Retailers judgment were endorsed by the same
court in the subsequent case of MEC, Department of Agriculture, Conservation and
Environment v HTF Developers (Pty) Ltd.29
If one looks at the right as a whole and considers its application, it would seem to apply
in four ways. First, it is a right that could be invoked by any person where it is neces-
sary for that person to protect his or her health or well-being. This would probably be a
relatively rare occurrence because of the presence of a large body of legislation that gives
effect to this right. Direct reliance on the Constitutional right would be rare because of the
principle of avoidance, which requires that remedies should be located in common law or
legislation (more likely in the environmental law sense) before resorting to constitutional
remedies.30 Secondly, it could be used as a ‘trigger’ for the so-called locus standi (or
legal standing) clause in s 38 of the Constitution (discussed below). Section 38 operates
24
See discussion of this idea above, 17ff.
25
2007 (6) SA 4 (CC).
26
Ibid at para [44].
27
Ibid at para [45].
28
Ibid at para [102].
29
2008 (2) SA 319 (CC).
30
See Zantsi v Council of State, Ciskei 1995 (4) SA 614 (CC) paras 2–5. For discussion of this principle in
the context of administrative justice, see Iain Currie & Jonathan Klaaren The Promotion of Administrative
Justice Act Benchbook (2001) at 27.

where there is a threat to or infringement of a right in the Bill of Rights. Thirdly, and
this is clear from the discussion above, the environmental right influences government
actions, including legislative and executive decisions and policies. Put differently, the
environmental right provides the underpinnings of the environmental legislation that has
been enacted since the Constitution came into effect. The fourth mode of operation of
the environmental right is as a guide to interpretation of both the common law and all
legislation (not only that which would usually be labelled ‘environmental’) through s 39.
Overall, the significance of the Constitutional environmental right was well expressed
in Director: Mineral Development, Gauteng Region, v Save the Vaal Environment31 that:
Our Constitution, by including environmental rights as fundamental, justiciable human rights,
by necessary implication requires that environmental considerations be accorded appropriate
recognition and respect in the administrative processes in our country. Together with the change
in the ideological climate must also come a change in our legal and administrative approach to
environmental concerns.
1.2 Other rights relevant to environmental management

There are other rights in the Bill of Rights that are directly relevant to the environment
and environmental management. These are discussed here.
Locus standi clause

According to s 38 of the Constitution:
‘Anyone listed in this section has the right to approach a competent court, alleging that
a right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a
court are:
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.’
Any person listed in (a) to (e) who alleges that his environmental right is threatened or
has been infringed will have locus standi in that matter. This issue is canvassed fully in
Chapter 8.32
Just administrative action clause

This clause provides that everyone has the right to administrative action that is law-
ful, reasonable and procedurally fair.33 In addition, everyone whose rights have been
adversely affected by administrative action has the right to be given written reasons.34
31
1999 (2) SA 709 (SCA) at 719C-D.
32
See below, 283ff.
33
Section 33(1).
34
Section 33(2).

The state is also required to enact national legislation that will give effect to these
rights; and to provide for the review of administrative action by a court or, where appro-
priate, an independent and impartial tribunal; impose a duty on the state to give effect to
the rights mentioned above;35 and promote an efficient administration.36
The first part of the right is arguably merely a codification of the existing common
law. The constitutional right to be given reasons is, however, an improvement on the
common-law position, since this right did not exist in common law.37 The legislature has
enacted the Promotion of Administrative Justice Act38 to give effect to the right. This is
not the place to discuss this Act in detail, but all decisions made by administrative (ie
government) officials in terms of environmental legislation would have to conform to the
requirements of the Act.
Since the effectiveness of environmental law depends largely on administrative action
which is lawful, reasonable and procedurally fair, this is a very important right from the
perspective of environmental law.
Access to information clause

Section 32 of the final Constitution provides that everyone has the right of access to any
information held by the state and any information that is held by another person and
that is required for the exercise or protection of any rights. The Promotion of Access to
Information Act 39 was enacted to give effect to the Constitutional right.
This is an important right because members of the public who wish to enforce environ-
mental law often require certain information in order to do so effectively. For example,
people who live in the vicinity of a factory causing air pollution may require information
from the state about the conditions attached to its registration certificate under which the
factory operates. What is particularly noteworthy about this provision is that the right is
applicable not only against the state, but also against individuals (in the stated circum-
stances). This could be very useful in the environmental sphere since the state might not
always have sufficient information for the member of the public to ascertain that there is a
breach of the law. Using the above example, an individual may use the access to informa-
tion clause to require the owners of the factory to disclose information about air pollution
levels, in order that they may be compared to what the law requires.
Property clause
The constitutional property right in s 2540 provides:
‘(1) No one may be deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application—
(a) for a public purpose or in the public interest; and
35
In s 33(1) and (2).
36
Section 33(3).
37
LG Baxter Administrative Law (1984) at 226.
38
Act 3 of 2000.
39
Act 2 of 2000.
40
Subsections not relevant to the present inquiry omitted.

(b) subject to compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected or decided or
approved by a court.
(3) The amount of the compensation and the time and manner of payment must be
just and equitable, reflecting an equitable balance between the public interest
and the interests of those affected, having regard to all relevant circumstances,
including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and ben-
eficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land reform, and
to reforms to bring about equitable access to all South Africa’s natural
resources; and
(b) property is not limited to land.
(8) No provision of this section may impede the state from taking legislative and
other measures to achieve land, water and related reform, in order to redress the
results of past racial discrimination, provided that any departure from the provi-
sions of this section is in accordance with the provisions of section 36(1).’41
The question which this clause raises for environmental conservation is whether the
Constitution prevents the imposition of restrictions on property rights for environmental
purposes and, if not, whether such restrictions will result in compensation having to be
paid to the holder of the rights in question. This will depend on whether the restrictions
amount to an expropriation, or whether they are seen as a mere deprivation.
The significance of this distinction is due to the decision of the Constitutional Court
in Harksen v Lane NO,42 where it was held that expropriation consists of a transfer of
property to the state. Restrictions on property rights such as land use measures, or restric-
tions on water use, do not involve a transfer of rights to the state and thus, according to
the narrow definition of expropriation set out in Harksen, expropriation would not be
present in such cases.
In other cases, however, the restriction on a particular person’s property rights (for
example, the reduction in a water user’s allocation of water) would amount to a dep-
rivation of an existing right and consequently the constitutional provision relating to
41
Section 36(1) of the Constitution is the limitations clause, which provides that rights in the Bill of Rights
may be limited ‘only in terms of law of general application to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human dignity, equality and freedom, taking
into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose’.
42
1998 (1) SA 300 (CC) at paras [29]–[39].

deprivation will come into play. Section 25 provides that the deprivation must be in terms
of law of general application and must not be arbitrary. The Constitutional Court has set
down a test for arbitrariness.43 A deprivation will be arbitrary when the ‘law’ in question:
does not provide sufficient reason for the particular deprivation in question or is procedurally
unfair. Sufficient reason is to be established as follows:
(a) It is to be determined by evaluating the relationship between means employed, namely the
deprivation in question, and ends sought to be achieved, namely the purpose of the law in
question.
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the relationship between
the purpose for the deprivation and the person whose property is affected.
(d) In addition, regard must be had to the relationship between the purpose of the deprivation
and the nature of the property as well as the extent of the deprivation in respect of such
property.
(e) Generally speaking, where the property in question is ownership of land or a corporeal
moveable, a more compelling purpose will have to be established in order for the depriv-
ing law to constitute sufficient reason for the deprivation than in the case when the prop-
erty is something different and the property right something less extensive. This judgment
is not concerned at all with incorporeal property.
(f) Generally speaking, when the deprivation in question embraces all the incidents of own-
ership, the purpose for the deprivation will have to be more compelling than when the
deprivation embraces only some incidents of ownership and those incidents only partially.
(g) Depending on such interplay between variable means and ends, the nature of the property
in question and the extent of its deprivation, there may be circumstances when sufficient
reason is established by, in effect, no more than a mere rational relationship between
means and ends; in others this might only be established by a proportionality evaluation
closer to that required by s 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a matter to be decided on
all the relevant facts of each particular case, always bearing in mind that the enquiry is
concerned with ‘arbitrary’ in relation to the deprivation of property under s 25.
If we consider this approach in the context of a specific example — the deprivation of

water rights — we can see that measures with environmental objectives are unlikely to
be regarded as arbitrary.44
Limitations clause
As is the case with all the rights in Chapter 2 of the Constitution, the environmental right
is subject to the limitations clause, s 36, which reads:
‘(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking
into account all relevant factors including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
43
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service 2002 (4) SA
768 (CC) at para [100].
44
See discussion of water law and the National Water Act in Chapter 4.

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution,
no law may limit any right entrenched in the Bill of Rights.’
It may well be possible that the limitations clause could be used to justify certain actions
detrimental to the environment on the basis that such actions constitute ‘reasonable and
justifiable’ limitations of the environmental right. A possible example would be the siting
in an ecologically sensitive area of a factory which would create large-scale employment,
where it would not be feasible to locate it elsewhere.
Interpretation of the Bill of Rights and under the Bill of Rights

According to s 39:
‘(1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or cus-
tomary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.’
Subsection (2), in particular, is potentially very important in respect of the interpretation
of environmental legislation. There have been at least two cases that have invoked s 39
in the context of cases involving environmental considerations. McCarthy v Constantia
Property Owners’ Association45 uses s 39, read with s 8(2) of the Constitution, to broaden
the standing of applicants wishing to access a court to ‘protect the environmental fabric
of their suburb’.46
In re Kranspoort Community47 dealt with the adjudication of a land claim and, in
the course of the judgment, the court found it necessary to address the issue of the
‘unsustainable depletion of renewable resources on the farm’.48 In the light of s 24 of
the Constitution, the court (per Dodson J) held that s 35(3) of the Restitution of Land
Rights Act:49
empowers and obliges the Court to impose conditions which will ensure equal access to the
restored asset by all members of the community, including younger members who will come to
access the property in their own right in the future. This allows me to impose conditions aimed
at eliminating the risk of such depletion. Such an interpretation of s 35(3) ‘promotes the spirit
purports and objects’ of s 24(b) of the Constitution.
45
1999 (4) SA 847 (C). See my discussion ‘Suburban aesthetics and the environmental right’ (1999) 6
SAJELP 257.
46
McCarthy (n 45) at 855F.
47
2000 (2) SA 124 (LCC).
48
Ibid at 183.
49
Act 22 of 1994.

1.3 Division of legislative competence

A very important aspect of the Constitution is the way in which it determines which
levels of government are responsible for various issues. The Constitution divides South
Africa into nine provinces50 and provides that the legislative authority of a province is
vested in its provincial legislature,51 which has the power, inter alia, to pass legislation for
its province with regard to any matter within a functional area listed in Schedules 4 and
5 of the Constitution; any matter outside those functional areas that is expressly assigned
to the province by national legislation; and any matter for which a provision of the Con-
stitution envisages the enactment of provincial legislation.52 The provincial legislature
may also assign any of its legislative powers to a municipal council in that province.53 In
addition, a provincial legislature may recommend to the National Assembly legislation
concerning any matter outside the authority of that legislature, or in respect of which an
Act of Parliament prevails over a provincial law.54
Schedule 4 sets out functional areas of concurrent national and provincial legislative
competence, and is divided into two parts. The first part includes the following items
which are relevant to environmental management: administration of indigenous forests;
agriculture; animal control and diseases; environment; health services; nature conserva-
tion, excluding national parks, national botanical gardens and marine resources; pollution
control; population development; regional planning and development; soil conservation;
tourism; and urban and rural development. Part B, which deals with local government
matters to the extent set out in s 155,55 includes: air pollution; municipal planning;
municipal health services; stormwater management systems in built-up areas; and water
and sanitation services limited to potable water supply systems and domestic waste-water
and sewage disposal systems.
Schedule 5 sets out functional areas of exclusive provincial legislative competence. It
contains the same two parts as does Schedule 4. Part A includes provincial planning and
Part B (local government matters) includes beaches and amusement facilities; billboards
and the display of advertisements in public places; cleansing; control of public nuisances;
noise pollution; and refuse removal, refuse dumps and solid waste disposal.
As far as the local government matters are concerned, a number of provisions of the
Constitution are relevant. Municipalities56 have the right to govern, on their own initia-
tive, the local government affairs of their communities, subject to national and provincial
legislation.57 Moreover, municipalities have executive authority in respect of, and have
the right to administer, the local government matters listed in Part B of Schedule 4 and
Part B of Schedule 5; and any other matter assigned to them by national or provincial
50
Section 103.
51
Section 104(1).
52
Section 104(1)(b).
53
Section 104(1)(c).
54
Section 104(5).
55
See below, 32.
56
The Constitution provides that local government consists of municipalities: s 151(1).
57
Section 151(3).

legislation.58 In this regard, a municipality may make and administer by-laws for the
effective administration of the matters which it has the right to administer.59
National and provincial government may not compromise or impede a municipality’s
ability or right to exercise its powers or perform its functions,60 but are required, by legisla-
tive and other measures, to support and strengthen the capacity of municipalities to manage
their own affairs, to exercise their powers and to perform their functions.61 With respect
to the local government matters listed in the two schedules, a provincial government has
the legislative and executive power to monitor these matters.62 In addition, national and
provincial governments have the legislative and executive authority to see to the effective
performance by municipalities of their functions in respect of those matters, by regulating
the exercise of municipalities’ executive authority in respect of those matters listed in the
schedules and other matters assigned or delegated to them.63
In City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal,64
the Constitutional Court declared Chapters V and VI of the Development Facilitation
Act65 unconstitutional because they purported to give powers relating to rezoning and
township establishment (so-called ‘town planning’ powers) to provincial development
tribunals established under the Act, the powers of which have a:
reach … [that] is so wide that it covers almost all land in the country. It applies to all land devel-
opment applications irrespective of where the land is located and regardless of whether some
other law governs development on it.66
The court held that these powers fall under the functional area in Part B of Schedule
4 of the Constitution entitled ‘municipal planning’, over which local government has
exclusive authority. Consequently, it was constitutionally impermissible for these powers
to be exercised by provincial development tribunals.
The provisions of the Constitution relating to allocation of powers have the effect of
devolving much of the responsibility for environmental legislation on the provinces and,
in some important cases, on local government. There are, however, several functional
areas where national and provincial government have concurrent legislative competence
and the question arises as to what happens where both national and provincial govern-
ment enact legislation and there is a conflict between the two. The Constitution makes
provision for this in s 146,67 which reads:
‘(1) This section applies to a conflict between national legislation and provincial leg-
islation falling within a functional area listed in Schedule 4.
58
Section 156(1).
59
Section 156(2).
60
Section 151(4).
61
Section 154(1).
62
Section 155(3)(a).
63
Section 155(3)(b) read with s 156(1).
64
2010 (6) SA 182 (CC).
65
Act 67 of 1995.
66
City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal (n 64) at para
[40].
67
Provisions not relevant to the present discussion omitted.

(2) National legislation that applies uniformly with regard to the country as a whole
prevails over provincial legislation if any of the following conditions is met:
(a) The national legislation deals with a matter that cannot be regulated effec-
tively by legislation enacted by the respective provinces individually.
(b) The national legislation deals with a matter that, to be dealt with effectively,
requires uniformity across the nation, and the national legislation provides
that uniformity by establishing—
(i) norms and standards;
(ii) frameworks; or
(iii) national policies.
(c) The national legislation is necessary for [inter alia]—
(vi) the protection of the environment.
(3) National legislation prevails over provincial legislation if the national legislation
is aimed at preventing unreasonable action by a province that—
(a) is prejudicial to the economic, health or security interests of another prov-
ince or the country as a whole; or
(b) impedes the implementation of national economic policy.
(4) When there is a dispute concerning whether national legislation is necessary for
a purpose set out in subsection (2)(c) and that dispute comes before a court for
resolution, the court must have due regard to the approval or the rejection of the
legislation by the National Council of Provinces.68
(5) Provincial legislation prevails over national legislation if subsection (2) or (3)
does not apply.
(6) A law made in terms of an Act of Parliament or a provincial Act can prevail only
if that law has been approved by the National Council of Provinces.’
As far as Schedule 5 matters are concerned, national legislation referred to in s 44(2) pre-
vails over provincial legislation in respect of matters within the functional areas listed in
that schedule.69 Section 44(2) provides that Parliament may pass legislation with regard
to a matter falling within a functional area listed in Schedule 5 when it is necessary to
maintain national security, economic unity, and/or essential national standards; to estab-
lish minimum standards required for rendering of services; or to prevent unreasonable
action taken by a province which is prejudicial to the interest of another province, or to
the country as a whole.
If a dispute concerning a conflict cannot be resolved by a court, the national legislation
prevails over the provincial legislation.70 If there is a decision by a court that legislation
prevails over other legislation, that does not invalidate the other legislation, but the other
legislation becomes inoperative for as long as the conflict remains.71 When considering
an apparent conflict between national and provincial legislation, every court must prefer
any reasonable interpretation of the legislation or Constitution that avoids a conflict over
any alternative interpretation that results in a conflict.
68
See ss 60–72 of the final Constitution.
69
Section 147(2).
70
Section 148.
71
Section 149.

Although provinces do have legislative competence over a wide range of environmen-

tal matters, national legislation which applies uniformly with regard to the country as a
whole and which is enacted for any of the purposes specified in s 146 will prevail over
the provincial legislation. What this means is that national government can maintain
overall control over many important areas of the environment by enacting legislation
which is aimed, for example, at providing uniform national norms and standards or which
is necessary for the protection of the environment. This is important because it may arise
that a particular province adopts legislative policies aimed, for example, at attracting
industrial development and which at the same time have no regard for the environment.
Since environmental problems do not remain within human-created political boundaries,
it is desirable that the national government maintains some form of overall control to
prevent this sort of situation arising.
A shortcoming of the provisions relating to legislative competence is lack of clarity
as regards the functional areas. For example, planning is included under several differ-
ent headings (none of which is defined) which fall under different areas of competence.
Regional planning and development is an area of concurrent provincial and national
competence, as is municipal planning, but the latter is a local government matter while
provincial planning is a matter of exclusive provincial competence.
1.4 Division of administrative responsibility

According to a provision in the interim Constitution dealing with transitional arrange-
ments, the President was empowered to assign the administration of a law for which
provinces had legislative competence72 to a competent authority within the jurisdiction
of a province, either generally or to the extent provided for in the proclamation.73 Assign-
ment depends on the province having the necessary administrative capacity to exercise
the powers and perform the functions in question.
The administration of certain environmental legislation was assigned to provinces in
terms of this section. The Environment Conservation Act 73 of 1989 was assigned to all
of the provinces, in respect of certain sections only,74 as were the Mountain Catchment
Areas Act 63 of 197075 and the Physical Planning Act 88 of 1967.76 The Sea-shore Act 21
72
In terms of s 126 read with Schedule 6 of the interim Constitution.
73
Section 235(8).
74
In terms of Proc R29 in GG 16346 of 7 April 1995, the Act was assigned in respect of the following:
1. sections 16, 17, 19, 19A, 23, 24A, 27, 29(2)(a), and 35(2);
2. sections 1, 26, 28, 28A, 29(7) and (8), 31(1) and 31(2), 31A, 32, 33(1), 34, 35(3) and (4), and 41A, in so
far as they relate to the powers and functions of the Administrator; and
3. sections 29(3), (4), (5) and (6), 30(1) and (2), 36 and 37 in so far as they apply or relate to the sections
referred to in items 1 and 2 above.
Later, in terms of Proc R43 in GG 17354 of 8 August 1996, the following sections were assigned: ss 3(2A);
and 24(f ), (g), (h), and (i) and ss 24(b), (c) and (k) and 25, provided that, notwithstanding the assignment,
the Minister may exercise any power under the said sections concurrently with the competent provincial
authority.
75
In terms of Proc R28 in GG 16346 of 7 April 1995, excluding the proviso to s 8(2) of the Act.
76
In terms of Proc R47 in GG 17375 of 23 August 1996, s 8 and ss 9, 9A and 12, in so far as they are necessary
for the administration of s 8 and in so far as they have not been repealed by s 36 of the Physical Planning
Act 125 of 1991, were assigned to the competent authorities within the provinces.

of 1935 was assigned to coastal provinces.77 Certain sections of the Health Act 63 of 1977,
most of which are not concerned with environmental issues, were also assigned.78
Assignment of legislation to provinces is dealt with in Schedule 6 of the final
Constitution.79
2. Framework environmental legislation: The National Environmental

Management Act
Framework legislation ‘aims to define overarching and generic principles in terms of
which sectoral-specific legislation is embedded, as well as to enhance the co-operative
environmental governance amongst fragmented line ministries’.80 The legislation which
most conforms to this idea is the National Environmental Management Act 107 of 1998,
which has come to be known by its acronym, NEMA. The preamble to the Act expressly
refers to the environmental right in s 24 and it is clear from the preamble that NEMA
is aimed at giving effect to the right at a framework level.81 The Act also gives effect
to the overarching principles of co-operative government contained in Chapter 3 of the
Constitution. This is significant since the ‘environment’ is designated in the Constitution
as an area of concurrent national and provincial legislative competence, with the result
that both national and provincial authorities are responsible for the administration of laws
protecting the environment. Before considering the Act, the origins of NEMA are worth
examining.
2.1 The origins of NEMA

Before the enactment of NEMA, the Act which most closely resembled framework legis-
lation was the Environment Conservation Act (ECA).82 Although the title of the Act sug-
gests it provided comprehensive protection for the environment, in fact the Act addressed
only selected aspects of environmental conservation. Because of this, and the fact that
the ECA did not give effect to s 24 of the Constitution, it became apparent that a new
framework environmental Act was necessary.
NEMA grew out of the environmental policy development process known as the Con-
sultative National Environmental Policy Process (CONNEPP), which involved extensive
public participation, although the public participation in the process of enactment of
NEMA was somewhat glossed over towards the time that the Act was finally passed.83
77
In terms of Proc R27 in GG 16346 7 April 1996, the whole of the Act was assigned to the provinces of
Eastern Cape, KwaZulu-Natal, Northern Cape and Western Cape, with the exception of certain sections
and in so far as it does not relate to sea-shore and sea within any port under the control of the Company
referred to in s 1 of the Legal Succession to the South African Transport Services Act 9 of 1989.
78
Proclamation R152 in GG 16049 of 31 October 1994.
79
Section 14.
80
Willemien du Plessis & Johan Nel ‘An evaluation of NEMA based on a generic framework for environ-
mental framework legislation’ (2001) 8 SAJELP 1 at 1–2.
81
See MEC, Department of Agriculture, Conservation and Environment v HTF Developers (Pty) Ltd 2008
(2) SA 319 (CC) at para [24].
82
Act 73 of 1989. This Act is discussed in detail in my earlier book Environmental Law: A South African
Guide (1997) in Chapter 4.
83
See Michael Kidd ‘The National Environmental Management Act and public participation’ (1999) 6
SAJELP 21.

The CONNEPP process resulted in the publication in May 1998 of the White Paper on
Environmental Management Policy for South Africa. This formed the basis for NEMA,
which was passed shortly thereafter. The Act came into effect on 29 January 1999.84
The purpose of the Act, according to the long title, is:
‘To provide for co-operative environmental governance by establishing principles for
decision-making on matters affecting the environment, institutions that will promote
co-operative governance and procedures for co-ordinating environmental functions
exercised by organs of state; to provide for certain aspects of the administration and
enforcement of other environmental management laws; and to provide for matters con-
nected therewith.’
Since the enactment of NEMA in 1998, the Act has been amended seven times.85
2.2 National environmental management principles

The Act contains an extensive list of principles that:
‘apply throughout the Republic to the actions of all organs of state that may signifi-
cantly affect the environment and—
(a) shall apply alongside all other appropriate and relevant considerations, including
the State’s responsibility to respect, protect, promote and fulfil the social and eco-
nomic rights in Chapter 2 of the Constitution and in particular the basic needs of
categories of persons disadvantaged by unfair discrimination;
(b) serve as the general framework within which environmental management and
implementation plans must be formulated;
(c) serve as guidelines by reference to which any organ of state must exercise any
function when taking any decision in terms of the Act or any statutory provision
concerning the protection of the environment;
(d) serve as principles by reference to which a conciliator appointed under the Act
must make recommendations; and
(e) guide the interpretation, administration and implementation of the Act, and any
other law concerned with the protection or management of the environment.’86
The first two principles provide that environmental management must place people and
their needs at the forefront of its concern, and serve their physical, psychological, devel-
opmental, cultural and social interests equitably;87 and that development must be socially,
environmentally and economically sustainable.88 These are followed by 18 further prin-
ciples, some of which are further subdivided. Given the importance of these principles, it
is worth reproducing them in full here:
84
Proc 8 of 29 January 1999.
85
By (in chronological order) the Mineral and Petroleum Resources Development Act 28 of 2002; the
National Environmental Management Amendment Act 56 of 2002; the National Environmental Manage-
ment Amendment Act 46 of 2003; the National Environmental Management Amendment Act 8 of 2004;
the National Environment Laws Amendment Act 44 of 2008; the National Environmental Management
Amendment Act 62 of 2008; and the National Environment Laws Amendment Act 14 of 2009.
86
Section 2(1).
87
Section 2(2).
88
Section 2(3).

‘(a) Sustainable development requires the consideration of all relevant factors includ-
ing the following:
(i) That the disturbance of ecosystems and loss of biological diversity are
avoided, or, where they cannot be altogether avoided, are minimised and
remedied;
(ii) that pollution and degradation of the environment are avoided, or, where
they cannot be altogether avoided, are minimised and remedied;
(iii) that the disturbance of landscapes and sites that constitute the nation’s cul-
tural heritage is avoided, or where it cannot be altogether avoided, is mini-
mised and remedied;
(iv) that waste is avoided, or where it cannot be altogether avoided, minimised
and re-used or recycled where possible and otherwise disposed of in a
responsible manner;
(v) that the use and exploitation of non-renewable natural resources is respon-
sible and equitable, and takes into account the consequences of the depletion
of the resource;
(vi) that the development, use and exploitation of renewable resources and the
ecosystems of which they are part do not exceed the level beyond which
their integrity is jeopardised;
(vii) that a risk-averse and cautious approach is applied, which takes into account
the limits of current knowledge about the consequences of decisions and
actions; and
(viii) that negative impacts on the environment and on people’s environmental
rights be anticipated and prevented, and where they cannot be altogether
prevented, are minimised and remedied.
(b) Environmental management must be integrated, acknowledging that all elements
of the environment are linked and interrelated, and it must take into account the
effects of decisions on all aspects of the environment and all people in the envi-
ronment by pursuing the selection of the best practicable environmental option.
(c) Environmental justice must be pursued so that adverse environmental impacts
shall not be distributed in such a manner as to unfairly discriminate against any
person, particularly vulnerable and disadvantaged persons.
(d) Equitable access to environmental resources, benefits and services to meet basic
human needs and ensure human well-being must be pursued and special meas-
ures may be taken to ensure access thereto by categories of persons disadvan-
taged by unfair discrimination.
(e) Responsibility for the environmental health and safety consequences of a policy,
programme, project, product, process, service or activity exists throughout its life
cycle.
(f) The participation of all interested and affected parties in environmental govern-
ance must be promoted, and all people must have the opportunity to develop the
understanding, skills and capacity necessary for achieving equitable and effective
participation, and participation by vulnerable and disadvantaged persons must be
ensured.

(g) Decisions must take into account the interests, needs and values of all inter-
ested and affected parties, and this includes recognising all forms of knowledge,
including traditional and ordinary knowledge.
(h) Community well-being and empowerment must be promoted through environ-
mental education, the raising of environmental awareness, the sharing of knowl-
edge and experience and other appropriate means.
(i) The social, economic and environmental impacts of activities, including disad-
vantages and benefits, must be considered, assessed and evaluated, and decisions
must be appropriate in the light of such consideration and assessment.
(j) The right of workers to refuse work that is harmful to human health or the envi-
ronment and to be informed of dangers must be respected and protected.
(k) Decisions must be taken in an open and transparent manner, and access to infor-
mation must be provided in accordance with the law.
(l) There must be intergovernmental co-ordination and harmonisation of policies,
legislation and actions relating to the environment.
(m) Actual or potential conflicts of interest between organs of state should be resolved
through conflict resolution procedures.
(n) Global and international responsibilities relating to the environment must be dis-
charged in the national interest.
(o) The environment is held in public trust for the people, the beneficial use of envi-
ronmental resources must serve the public interest and the environment must be
protected as the people’s common heritage.
(p) The costs of remedying pollution, environmental degradation and consequent
adverse health effects and of preventing, controlling or minimising further pol-
lution, environmental damage or adverse health effects must be paid for by those
responsible for harming the environment.
(q) The vital role of women and youth in environmental management and develop-
ment must be recognised and their full participation therein must be promoted.
(r) Sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal
shores, estuaries, wetlands, and similar systems require specific attention in man-
agement and planning procedures, especially where they are subject to significant
human resource usage and development pressure.’89
These principles have many features in common with internationally accepted principles
of environmental management, which can be seen when one compares these principles
with the Rio Principles.90 Of the prominent principles identified in Chapter 1, the precau-
tionary principle is contained in s 2(4)(a)(vii) and the polluter pays principle in s 2(4)(p).
These principles are not simply a wish list. Section 2(1) makes it clear that these prin-
ciples apply to the actions of all organs of state that may significantly affect the environ-
ment, particularly in those situations itemised in that section. Given the clear wording
of this section, it is rather surprising that the Constitutional Court in Minister of Public
Works v Kyalami Ridge Environmental Association91 stated that the principles are not
89
Section 2(4).
90
See below, 55, for discussion of the Rio Principles.
91
2001 (3) SA 1151 (CC).

directed at ‘controlling the manner in which organs of state use their property’,92 and that
it was not appropriate for the court to decide whether the principles can be applied in a
dispute ‘between members of the public and the government concerning activities that
are not regulated by environmental implementation plans or other provisions formulated
under the Management Act’.93 As far as the latter consideration is concerned, it proceeded
on an assumption that they can be.
Contrary to the Constitutional Court’s flawed decision, on both a literal and purposive
interpretation of s 2(1) it would apply in cases controlling the way in which organs of
state use their property, if such use constituted a ‘significant’ effect on the environment.
Moreover, it is patently clear from the Act that the principles are envisaged as being
applicable in a dispute between members of the public and anyone else, including the
government, where there is a breach or threatened breach of any provision of NEMA,
or any statutory provision concerned with the protection of the environment or the use
of natural resources (as provided for in s 32(1)). Reading s 2 together with s 32, the lat-
ter section would be redundant if the principles in s 2 were not applicable in a dispute
between members of the public and the government.
The court in Kyalami also states, quite rightly, that the principles are applicable only
to activities that may ‘significantly’ affect the environment. The court then decides that
there is ‘no suggestion’ that the activity under scrutiny in the case ‘will significantly
affect the environment’.94 The court adds, ‘the Kyalami residents have not shown as a
probability that the establishment of the camp at Leeuwkop will have a significant effect
on the environment’.95 The problem with this reasoning is that s 2(1) does not use the
word ‘will’, but rather the word ‘may’. This difference, which may appear at first glance
to be rather subtle, is critical. The Act uses the word ‘may’ because it should not be
necessary for someone relying on these principles to show that an action by govern-
ment will significantly affect the environment, but only that it may significantly affect the
environment. Given the uncertainties of environmental science that are often present in
assessment of the likely environmental impact of activities, had the section in question
read ‘will’ instead of ‘may’, it would have been a largely toothless provision, and the
court’s interpretation of it as ‘will’ renders it such.96
Later, in MEC for Agriculture, Conservation, Environment & Land Affairs v Sasol Oil
(Pty) Ltd,97 the Supreme Court of Appeal expressly recognised98 that NEMA requires
that:
the interpretation of any law concerned with the protection and management of the environment
must be guided by [the principles in s 2]. At the heart of these is the principle of sustainable
development, which requires organs of state to evaluate the social, economic and environmental
impacts of activities.
92
Ibid at para [68].
93
Ibid at para [69].
94
Ibid at para [75], emphasis added.
95
Ibid, emphasis added.
96
See, further, Michael Kidd ‘The Constitutional Court’s dilution of NEMA’ (2001) 8 SAJELP 119.
97
2006 (5) SA 483 (SCA).
98
Ibid at para [15].

This is a welcome finding which is far more in tune with a purposive (and literal) inter-
pretation of NEMA than the Constitutional Court’s treatment of the principles in the
Kyalami case. A similar finding had been made earlier in BP Southern Africa (Pty) Ltd v
MEC for Agriculture, Conservation, Environment and Land Affairs.99
More recently, the Constitutional Court redeemed itself in Fuel Retailers Association
of Southern Africa v Director-General: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga Province,100 where the court,
having paraphrased s 2(1), observed (correctly) that it is ‘plain that these principles must
be observed as they are of considerable importance to the protection and management
of the environment’.101 Unfortunately, later in the judgment, the court in effect contra-
dicted itself (at least its pronouncement quoted in the previous sentence) when it stated
(incorrectly):
The local authority [in deciding a rezoning application] is not required to consider the social,
economic and environmental impact of a proposed development as the environmental authori-
ties are required to do [in deciding an environmental authorisation] by the provisions of NEMA.
Nor is it required to identify the actual and potential impact of a proposed development on
socio-economic conditions as NEMA requires the environmental authorities to do.102
2.3 Institutions
The whole of Chapter 2, which made provision for the establishment of institutions for
environmental management — the National Environmental Advisory Forum103 and the
Committee for Environmental Co-ordination104 — has been repealed by the National
Environmental Laws Amendment Act 14 of 2009.
2.4 Environmental implementation and management plans

Chapter 3 provides procedures for co-operative governance, which revolve around the
submission, scrutiny and compliance with two types of plans. Every national depart-
ment listed in Schedule 1105 as exercising functions which may affect the environment
and every province must prepare an environmental implementation plan within one year
of the promulgation of the Act and at least every four years thereafter. Every national
department listed in Schedule 2106 as exercising functions involving the management of
the environment must prepare an environmental management plan within one year of
the promulgation of the Act and at least every four years thereafter. The purpose of these
99
2004 (5) SA 124 (W). See especially 145–7 and 150–1.
100
2007 (6) SA 4 (CC).
101
Ibid at para [67].
102
Ibid at para [85]. These issues are discussed in further detail at 257ff. See, in this regard, Michael Kidd
‘Removing the green-tinted spectacles: The three pillars of sustainable development in South African
environmental law’ (2008) 15 SAJELP 85.
103
Sections 3–6.
104
Sections 7–10.
105
These Departments are: Environmental Affairs and Tourism; Land Affairs; Agriculture; Housing; Trade
and Industry; Water Affairs and Forestry; Transport; and Defence: Schedule 1.
106
These Departments are: Environmental Affairs and Tourism; Water Affairs and Forestry; Minerals and
Energy; Land Affairs; Health; and Labour: Schedule 2.

plans, the contents of which are prescribed,107 is to provide for co-operative environ-
mental governance, more specifically to ‘co-ordinate and harmonise the environmental
policies, plans, programmes and decisions of the various national departments that exer-
cise functions that may affect the environment or are entrusted with powers and duties
aimed at the achievement, promotion, and protection of a sustainable environment, and
of provincial and local spheres of government’.108
The Minister or MEC scrutinises the plans once they are submitted and either approves
them or, in the event that they are inconsistent with environmental legislation or other
plans, refers them back for resubmission.109 The importance of these plans lies in the
fact that every organ of state must exercise every function it may have, or that has been
assigned or delegated to it, by or under any law, and that may significantly affect the
protection of the environment, substantially in accordance with the environmental imple-
mentation plan or the environmental management plan.110
On paper, this appears to be a sensible system for ensuring coherent environmental
policy from all government departments. In practice, however, it appears to be somewhat
dysfunctional. Plans were being approved as late as 2003, after the Minister extended the
initial deadline to 30 March 2001.111 According to the Act, updated plans are required to
be submitted every four years after the first one. In August 2006, the Minister issued a
notice requiring second editions to be submitted by 31 March 2008 and all further plans
to be submitted within four years after this date.112 Since this notice extended the deadline
by more than one year, it is not in conformity with s 11(5), and hence would appear to be
ultra vires. In effect, the Minister is amending the Act, which he is not entitled to do. It is
interesting that several plans have not yet been published despite the fact that it is longer
than two years since the March 2008 deadline.113
The Act requires all management plans of national departments, once adopted, to be
published in the Gazette.114 It is not clear why this requirement is confined to these plans.
If government departments are expected to comply with their plans, surely the public
should be able to check that this is being done? This is not possible if only some of the
plans are in the public domain. (The Act does provide that plans and related documents
‘must be available for inspection by the public’,115 but this does not go far enough.)
One final observation relating to plans is that it seems ridiculous that the Department
of Minerals and Energy is not regarded as an organ of state exercising functions which
107
See ss 13 and 14.
108
Section 12.
109
Section 15.
110
Section 16.
111
GN 4071 of 20 October 2000. Section 11(5) provides that The Minister may by notice in the Gazette extend
the date for the submission of any environmental implementation plans and environmental management
plans for periods not exceeding 12 months. This notice extended the deadline by more than 12 months.
112
GN 856 of 25 August 2006.
113
For details, see Michael Kidd ‘Setting a bad example: The state’s compliance with environmental law in
South Africa’ in Michael Kidd & Shannon Hoctor (eds) Stella Iuris: Celebrating 100 Years of Teaching
Law in Pietermaritzburg (2010).
114
Section 15(5).
115
Section 16(5).

‘may affect the environment’ and consequently required to submit an environmental

management plan (although it is required to submit an implementation plan).
2.5 Fair decision-making and conflict management

Chapter 4 deals with fair decision-making and conflict management. The chapter pro-
vides for conciliation, mediation and arbitration as forms of dispute resolution in envi-
ronmental issues.
2.6 Integrated environmental management

A crucial component of the Act is Chapter 5, which deals with Integrated Environmental
Management. This chapter has been substantially amended by Acts 8 of 2004 and 62 of
2008. The chapter addresses the authorisation of activities likely to be detrimental to the
environment (so-called environmental authorisations), such authorisation being consid-
ered on the basis of environmental impact assessment procedures. This is the subject of
detailed discussion in Chapter 7, so this chapter of the Act will not be discussed further
here.
2.7 International obligations and agreements

Chapter 6 seeks to bring South Africa into line with international standards of environ-
mental management. Section 25 deals with issues relating to South Africa’s joining of
international conventions, as well as their domestic implementation. Section 26 requires
that annual reports must be submitted by the Minister to Parliament on, inter alia,
international environmental instruments for which he is responsible and the progress in
implementing them. The Minister must also initiate an Annual Performance Report on
sustainable development to meet the government’s commitment in terms of Agenda 21.116
The report must cover the activities of all national departments and spheres of government
in terms of their performance under Agenda 21 as well as the procedures of review for
the co-ordination of policies and budgets to meet the objectives of Agenda 21, and must
review progress on public education programmes supporting the objectives of Agenda 21.
International environmental law is discussed in the next chapter.
2.8 Compliance, enforcement and protection

This part of the Act, Chapter 7, is very important as far as the public is concerned, since
most of the rest of the Act is targeted at organs of state rather than individuals. This
chapter has been substantially augmented by Acts 46 of 2003 and 14 of 2009. The topics
covered by Chapter 7 of the Act will be outlined here, but discussed in more detail in
Chapter 8 of this book. Chapter 7 is divided into three parts: environmental hazards,
access to information and protection of whistleblowers; the application of the Act and
specific environmental management Acts; and judicial matters. ‘Specific environmental
management Acts’ are the Environment Conservation Act,117 the National Water Act,118
116
Discussed below, 56.
117
Act 73 of 1989.
118
Act 36 of 1998.

the National Environmental Management: Protected Areas Act,119 the National Environ-
mental Management: Biodiversity Act,120 and the National Environmental Management:
Air Quality Act,121 and include any regulation or other subordinate legislation made in
terms of any of those Acts. The Acts are those for which many of the compliance and
enforcement provisions in NEMA apply.
The issues dealt with in Chapter 7 are:
Part 1 — environmental hazards, access to information and protection of whistle-blowers
●● Duty of care and remediation of environmental damage122
●● Protection of workers refusing to do environmentally hazardous work
●● Control of emergency incidents
●● Access to environmental information and protection of whistle-blowers.
Part 2 — Application of the Act and specific environmental management Acts, which
deals with the appointment of environmental management inspectors and their powers
and responsibilities, including the power to issue compliance notices.
Part 3 — Judicial matters
●● Legal standing to enforce environmental laws
●● Private prosecution
●● Criminal proceedings (including issues such as directors’ liability and other aspects
relating to prosecution of environmental offences).
2.9 Environmental management co-operation agreements

These agreements, known as EMCAs, are provided for in Chapter 8, reflecting an impor-
tant international trend.123 This chapter authorises the Minister, provincial governments
and local authorities to enter into co-operation agreements with any person or com-
munity for the purpose of promoting compliance with the principles of environmental
management.
2.10 Administration
Chapter 9 deals with matters related to the administration of the provisions of the Act and
the specific environmental management Acts. This chapter confers on officials certain
competencies and powers that are necessary for the achievement of the objectives of
these Acts. Thus the Director-General may enter into agreements with organs of state
to fulfil his or her responsibilities. The Minister may draft model by-laws to establish
measures for the management of environmental impacts of any development within the
jurisdiction of a municipality and the latter may adopt them as by-laws. Municipalities
119
Act 57 of 2003.
120
Act 10 of 2004.
121
Act 39 of 2004.
122
This includes s 28, which is discussed at 149 and 278.
123
See Werner Scholtz ‘Introduction of environmental co-operation agreements in South Africa’ (2004) 11
SAJELP 31 and ‘Co-operative and participatory governance via the implementation of environmental
management co-operation agreements’ (2004) 11 SAJELP 183.

may also request the Director-General to assist with the preparation of by-laws on mat-
ters affecting the environment and programmes may be instituted to assist them with
the preparation of bylaws for the implementation of the Act. The chapter also deals with
matters such as appeal; delegation of powers; and the procedure for enacting regulations.
2.11 Assessment
In many respects, NEMA is a pioneering statute. The provision relating to standing (locus
standi), for example, is more generous than in most other jurisdictions. More detailed
analysis of the individual provisions will be provided in the discussion in the appropriate
chapters later in the book. Overall, this is one of many South African environmental
laws that, on paper, are excellent laws. The main challenge facing the environmental
authorities, in all three spheres of government, however, is ensuring that the promise
of these laws on paper is translated into reality. The effectiveness of the enforcement of
South Africa’s environmental laws has been a concern for years and there is still concern
in this regard. There are now more mechanisms for enforcement than ever before, and
encouraging developments in the enforcement and compliance arena, but there is still
considerable room for improvement.

3
International Environmental
Law
The nature of environmental problems is such that they cannot be contained by geo-
graphical boundaries. Issues of regional importance, such as shared watercourses and
acid rain, and international concerns, such as global warming, loss of biodiversity and the
holes in the ozone layer, make it imperative that environmental problems are addressed
internationally as well as within individual nations. It is for this reason that international
environmental law is being seen as an increasingly important subject. Another reason
for its importance is that international law is increasingly becoming the impetus behind
domestic environmental law.
Because international law differs from the law of individual nation states, primar-
ily in its origins and its enforcement, this chapter will begin by briefly examining the
sources and nature of international law. This will be followed by an assessment of the
history of international environmental law, and then a discussion of general principles
of international environmental law. The concluding section of the chapter will furnish
brief detail on some important international treaties and conventions pertaining to the
environment. Those to which South Africa is a party may be discussed in further detail
in later chapters.
1. Sources of international law

In terms of art 38(1) of the statute of the International Court of Justice, the sources of
international law are:
(a) international conventions (treaties), whether general or particular;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilised nations; and
(d) judicial decisions and the teachings of the most highly qualified publicists, as sub-
sidiary means for the determination of rules of law.
Treaties are usually seen as the primary source while custom is the secondary source.1
Each source will be examined in turn.
1.1 Treaties
A treaty is a written agreement between states or between states and international organ-
isations, operating within the field of international law.2 Treaties can be multilateral,
1
John Dugard International Law: A South African Perspective 3 ed (2005) at 27.
2
Ibid at 28.
45

binding many states, or bilateral (between two states only), and can broadly be divided
into three categories:3
(a) Contractual treaties — as the name suggests, these are treaties of a contractual na-
ture between states dealing with matters such as trade and extradition.
(b) Legislative treaties — these codify existing rules of international law or create new
rules of law. It is important to note, however, that these treaties do not bind non-
signatories. This is the most important category in environmental law. Although
treaties do no bind non-signatories, widespread practice arising from a treaty may
lead to the crystallisation of that principle into a rule of international customary law
(see below), which will then bind all states.
(c) Constitutional treaties — certain multilateral treaties create (or constitute) inter-
national organisations such as the United Nations and the International Criminal
Court.
1.2 Custom
Custom can be seen as the common law of the international community, and two main
requirements have been identified for the existence of a rule of custom: settled practice
(usus) and the acceptance of an obligation to be bound (opinio juris sive necessitatis).4
For the settled practice requirement, there must be in general a recurrence or repetition
of the acts which give birth to the customary rule. Minor deviations are allowed but major
departures would defeat this requirement. According to the International Court of Justice,
a practice must constitute ‘constant and uniform usage’ in order to qualify as custom.5 In
many cases it may be difficult to establish custom, but many evidentiary sources are used
in this regard.6 Where such settled practice exists, this may lead to a practice crystallising
into a rule of international custom. Generally this requires some passage of time, but in
fields of technological or scientific endeavour, this may happen more quickly.7
The second requirement — opinio juris — requires that states must feel bound by the
rule in question, sometimes referred to as the psychological element.8 This must be more
than a habit or regular occurrence, but the states must feel that they are ‘conforming to
what amounts to a legal obligation’.9
1.3 General principles of law recognised by civilised nations

When treaty and custom rules cannot be drawn upon, common principles of law found in
municipal systems can be used in order to fill in the gaps.10 Examples of such principles
stretch from unjust enrichment and estoppel to notions of equity and humanity.11
3
Ibid at 28–9.
4
Ibid at 29.
5
The Asylum Case (Colombia v Peru) 1950 ICJ Rep 266.
6
For more detail, see Dugard (n 1) at 29–33.
7
See Dugard (n 1) at 30–1.
8
Ibid at 33.
9
North Sea Continental Shelf Cases 1969 ICJ Rep 3.
10
Dugard (n 1) at 38.
11
Ibid.

International Environmental Law 47
1.4 Judicial decisions

Article 59 of the International Court of Justice (ICJ) provides that the decision of the
court has no binding force except between the parties and in respect of that particular
case. Such decisions are therefore only persuasive as far as the ICJ is concerned. Domes-
tic courts, however, often rely on decisions of the ICJ and, of course, would be bound by
precedents pertaining to international law issues set within that country.
1.5 Juristic works

Juristic works (ie books and commentaries by learned authors) have no authority in them-
selves. They serve to throw light on existing rules.
1.6 The concept of jus cogens

The concept jus cogens incorporates the body of peremptory principles or norms from
which no derogation is permitted.12 For example, a treaty would stand to be invalidated if
it contravened these principles. It works in a similar fashion to the municipal law concept
of ‘public policy’. There is general acceptance that the prohibition against the threat or use
of aggression is peremptory.13 Other norms which may qualify as jus cogens are the prohi-
bitions on genocide, racial discrimination, slavery, and the denial of self-determination.14
1.7 Non-traditional sources: ‘soft law’

‘Soft law’ is a controversial concept, but one which is increasingly used in the interna-
tional law field. It consists essentially of ‘codes of practice, recommendations, guidelines,
resolutions, declarations of principles, standards and so-called ‘framework’ or ‘umbrella’
treaties which do not fit neatly into the categories of legal sources referred to in art 38(1)
(c) of the ICJ statute’.15 The expectation is that these will command respect and be adhered
to by states, although they are not binding per se. The main advantage of ‘soft law’ over
‘hard law’ is that it can enable states to take on obligations that they would not have taken
on had they been required to accede to a treaty, for instance, owing to the obligations
being couched in vaguer terms. Alternatively, the obligations may be formulated in a
more precise and restrictive form than would have been acceptable in a treaty.16
Although rules of soft law may not be enforced, they have ‘played an important role;
they point to the likely future direction of formally binding obligations, by informally
establishing acceptable norms of behaviour, and by ‘codifying’ or possibly reflecting
rules of customary law’.17 Examples are a number of initiatives of the United Nations
Environment Programme,18 and the International Atomic Energy Agency.19
12
See art 53 of the Vienna Convention on the Law of Treaties.
13
Dugard (n 1) at 43.
14
Ibid.
15
Patricia W Birnie & Alan E Boyle International Law and the Environment 2 ed (2002) 25.
16
Ibid.
17
Philippe Sands Principles of International Environmental Law 2 ed (2003) at 124. See also Birnie & Boyle
(n 15) at 25.
18
See below, 53.
19
Birnie & Boyle (n 15) at 26.

2. Enforcement of international law

A person who breaks the law in a particular country runs the risk of being arrested,
prosecuted before a court and sentenced to some sanction by that court. International law
does not work in quite the same way. The sanctions that can be used to secure observance
of international law are different from those used in individual countries.
Ultimately, international sanctions may be imposed by the United Nations Security
Council in the event of a threat to peace, breach of peace, or act of aggression, in order
to maintain or restore international peace and security. These may include economic
sanctions and the actual use of force.
Other types of international law sanctions are provided for by specific treaties, but two
examples that are widely used are the suspension or expulsion (or other denial of privileges
of participation) of member states of certain international organisations and the treatment
as invalid by other states of acts of one state which are in breach of international law.
It must also be borne in mind that those rules of international law which impose duties
upon individuals can result in the imposition of sanctions upon such individuals who
break them (for example war crimes). The International Criminal Court, created by the
Rome Statute of 1998, is a recent international development. Its jurisdiction includes
matters of genocide, crimes against humanity, and war crimes.
Sanctions, however, do not play quite the same role in securing compliance with inter-
national law as they do in securing compliance in national law. In the words of JG Starke:
Apart from the sanctions and pressures mentioned above, the main elements reinforcing the
obligatory character of the rules of international law are the empirical facts that states will insist
on their rights under such rules against states which they consider should observe them, and
that states recognise international law as binding upon them. Obviously, if states did not insist
on respect for these rules, international law would not exist. The ultimate reasons that impel
states to uphold the observance of international law belong to the domain of political science,
and cannot be explained by a strictly legal analysis. In other words, to some extent at least, the
problem of the binding force of international law ultimately resolves itself into a problem no
different from that of the obligatory character of the law in general.20
3. The status of international law within South Africa

According to the Constitution,21 the negotiating and signing of all international agree-
ments is the responsibility of the national executive22 and an international agreement
binds the Republic only after it has been approved by resolution in both the National
Assembly and the National Council of Provinces, unless it is an agreement of a techni-
cal, administrative or executive nature.23 Any international agreement becomes law in
the Republic when it is enacted into law by national legislation.24 In other words, trea-
ties do not become part of municipal law (ie the law of the country) without legislative
20
JG Starke Introduction to International Law 10 ed (1989) at 31 (emphasis added).
21
Constitution of the Republic of South Africa, 1996.
22
Section 231(1).
23
Section 231(2).
24
Section 231(4), save in the case of a self-executing provision of an agreement that has been approved
by Parliament which is law in the Republic, unless it is inconsistent with the Constitution or an Act of
Parliament.

transformation, which was the case before the Constitution as well.25 There are three
principal ways of doing this:
(i) the treaty document as a whole is included in an Act of parliament;
(ii) the treaty may be included as a schedule to a statute; and
(iii) an Act may give the executive power to bring a treaty into effect in municipal law
by means of proclamation in the Government Gazette.
What this means, therefore, is that an international treaty or convention is not binding
within South Africa until it has been enacted into municipal law by one of the means out-
lined above. South Africa, if it is a party to the treaty, will be bound on the international
plane, but individuals within the country will not be bound. It is therefore important that
the necessary legislative process does take place once the country has become a mem-
ber state of a treaty or convention. A good example is the so-called Ramsar Convention,
relating to wetland conservation. South Africa is a signatory but the treaty has not yet
been (directly) incorporated into our legislation.26
Although there was previously some controversy as to whether customary interna-
tional law was part of our law, the matter is now directly addressed by the Constitution:
Customary international law is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.27 In other words, it becomes part of our common
law by way of automatic incorporation.
The Constitution, in two separate sections, also provides that international law is a
mandatory guide to domestic law. Section 39 provides that when interpreting the Bill of
Rights, a court, tribunal or forum must, inter alia, consider international law. Section 233
goes further — when interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law over any alterna-
tive interpretation that is inconsistent with international law.
The National Environmental Management Act (NEMA)28 also contains provisions
relating to international environmental law. Where the Republic is not yet bound by an
international environmental instrument, the Minister may make a recommendation to
the Cabinet and to Parliament regarding accession to and ratification of an international
environmental instrument, which may deal with the following:
‘(a) available resources to ensure implementation;
(b) views of interested and affected parties;
(c) benefits to the Republic;
(d) disadvantages to the Republic;
(e) the estimated date when the instrument is to come into effect;
(f) the estimated date when the instrument will become binding on the Republic;
(g) the minimum number of states required to sign the instrument in order for it to
come into effect;
(h) the respective responsibilities of all national departments involved;
25
Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A)
at 161C–D.
26
See discussion below, 136.
27
Section 232.
28
Act 107 of 1998.

(i) the potential impact of accession on national parties;

(j) reservations to be made, if any; and
(k) any other matter which in the opinion of the Minister is relevant.’29
Where the Republic is a party to an international environmental instrument, the Minister
may, after the instrument has been approved by Parliament, publish in the Gazette the
provisions of the international environmental instrument and any amendment or addition
to such instrument.30 The Minister may:
‘introduce legislation in Parliament or make such regulations as may be necessary for
giving effect to an international environmental instrument to which the Republic is a
party, and such legislation and regulations may deal with inter alia the following—
(a) the co-ordination of the implementation of the instrument;
(b) the allocation of responsibilities in terms of the instrument, including those of
other organs of state;
(c) the gathering of information, including for the purposes of compiling and updat-
ing reports required in terms of the instrument and for submission to Parliament;
(d) the dissemination of information related to the instrument and reports from inter-
national meetings;
(e) initiatives and steps regarding research, education, training, awareness raising
and capacity building;
(f) ensuring public participation;
(g) implementation of and compliance with the provisions of the instrument, includ-
ing the creation of offences and the prescription of penalties where applicable;
and
(h) any other matter necessary to give effect to the instrument.’31
The Minister must:
‘report to Parliament once a year regarding international environmental instruments
for which he or she is responsible and such report may include details on—
(a) participation in international meetings concerning international environmental
instruments;
(b) progress in implementing international environmental instruments to which the
Republic is a party;
(c) preparations undertaken in respect of international instruments to which the
Republic is likely to become a party;
(d) initiatives and negotiations within the region of Southern Africa;
(e) the efficacy of co-ordination mechanisms; and
(f) legislative measures that have been taken and the time frames within which it is
envisaged that their objectives will be achieved.’32
29
Section 25(1) of NEMA. See s 25(4) for publication of the intention to make recommendations in terms of
s 25(1).
30
Section 25(2).
31
Section 25(3).
32
Section 26(1).

The Minister must initiate an Annual Performance Report on Sustainable Development

to meet the government’s commitment to Agenda 21, which must cover all relevant activ-
ities of all national departments and spheres of government.33 The purpose of the report
is to provide an audit and a report of the government’s performance in respect of Agenda
21; review procedures for co-ordinating policies and budgets to meet the objectives of
Agenda 21; and review progress on a public educational programme to support the objec-
tives of Agenda 21.34
Chapter 6 of the Act applies to any international environmental instrument whether the
Republic became a party to it before or after the coming into force of the Act.35 The provi-
sions of any international environmental instrument published in accordance with this
section36 are evidence of the contents of the international environmental instrument in
any proceedings or matter in which the provisions of the instrument come into question.37
4. History of international environmental law

According to Sands, international environmental law has evolved over four distinct
periods.38
4.1 From early fisheries conventions to the creation of the United Nations
in 1945
During this period industrialisation and development on a hitherto unprecedented scale
led to concern over the exploitation of natural resources. A number of treaties aimed pri-
marily at conservation of natural resources, particularly wildlife, were adopted, starting
with treaties on fishing in the mid-nineteenth century aimed at over-exploitation. These
were largely reactive and ad hoc.39
One of the most important international decisions in the sphere of environmental law
was made during this time. In the Trail Smelter arbitration,40 the dispute arose out of
damage caused to farming operations in the American state of Washington by a privately
owned smelter in Canada. The important finding of the Tribunal, which found Canada
liable and ordered payment of damages, was that:
no state has the right to use or permit the use of its territory in such a manner as to cause injury
by fumes in or to the territory of another or the properties or persons therein, when the case is of
serious consequence and the injury is established by clear and convincing evidence.41
33
Section 26(2). All organs of state must provide information for the report to the Minister, who may appoint
persons as a Secretariat to prepare the report.
34
Section 26(2)(d).
35
Section 27(1).
36
It would appear that this word should be ‘Chapter’ and not ‘section’.
37
Section 27(2).
38
Sands (n 17) at 25.
39
Ibid at 26.
40
United States v Canada 3 RIAA (1941) 1905.
41
AJIL 716 (1941); 9 ILR 317.

The decision ‘has come to represent a crystallising moment for international environ-
mental law’ and has had a significant influence on subsequent developments.42
4.2 The creation of the United Nations to the 1972 Stockholm Conference
1945 saw the creation of the United Nations and specialised agencies such as the Food and
Agriculture Organisation (FAO) and the United Nations Educational, Scientific and Cul-
tural Organisation (UNESCO), which began to address environmental issues, even though
these were not their main aims. Significant developments during this period were as follows:
●● The establishment in 1948 of the International Union for the Protection of Nature
(IUPN), later the International Union for the Conservation of Nature and Natural
Resources (IUCN), to promote the preservation of wildlife and the natural environ-
ment, public knowledge, education, scientific research and legislation.43
●● The 1949 United Nations Conference on the Conservation and Utilisation of Resources
(UNCCUR), which was aimed at the exchange of information. Its important contribu-
tion was to sow the seeds of the concern with the relationship between conservation
and development
●● Various treaties and United Nations resolutions addressing issues of nuclear activity
and marine oil pollution, reflecting an advance from concern over wildlife to concern
with the ‘products and processes associated with military and industrial activity.44
●● A number of regional developments in the environmental sphere: the 1959 Antarctic
Treaty and the first environmental legislation of the European Community, for example.
●● The Lac Lanoux arbitration,45 in which the court confirmed limitations on the rights
of states in the case of shared watercourses.
●● The 1958 Geneva Conventions on the Law of the Sea.
It is clear that, while there were significant environmental developments on the interna-
tional plane, these were happening in an ad hoc and unco-ordinated manner. The Con-
ference on the Human Environment, convened in 1968 by the United Nations General
Assembly, sought to address this problem. The conference was convened following a res-
olution noting ‘the continuing and accelerating impairment of the quality of the human
environment’.46 This conference (the UNCHE) was held in Stockholm in 1972, and is
often seen as a watershed development in international environmental law.
The United Nations Conference on the Human Environment (Stockholm

Conference)
The Conference met in June 1972 and was attended by 114 states as well as international
institutions and non-governmental organisations. The Conference produced a Declara-
tion of twenty-six principles,47 and an Action Plan of 109 recommendations. The report of
42
Sands (n 17) at 31.
43
Renamed in 1956, it was originally called the International Union for the Protection of Nature. See Sands
at 30.
44
Sands (n 17) at 33.
45
France v Spain (1957) 24 ILR 101.
46
47
Sands (n 17) at 36. See Birnie & Boyle (n 15) at 39–40.

the Conference was later considered by the UN General Assembly and eleven resolutions
were adopted, relating, inter alia, to some of the principles adopted at Stockholm and
creating the United Nations Environment Programme.48
Probably the most important of the principles in the Stockholm Declaration is Principle
21, which is widely assumed to be part of customary international law.49 It reads:
States have, in accordance with the Charter of the United Nations and principles of international
law, the sovereign right to exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other states or of areas beyond the limits of national
jurisdiction.
This principle will be discussed in more detail below.50

The importance of the Stockholm Conference is that it brought about a more co-
ordinated approach to international environmental issues and had a great influence on
subsequent developments, the most significant achievements being the creation of UNEP
and the adoption of Principle 21.51
4.3 Stockholm to UNCED (the Rio Conference) 1992

The period after the Stockholm Conference was characterised by much activity in the
area of environmental treaties. Several important treaties were established and imple-
mented as a result of the efforts of UNEP, among these the 1985 Vienna Convention
and 1987 Montreal Protocol on ozone depletion; the 1989 Basel Convention addressing
international trade in hazardous waste; and the 1992 Biodiversity Convention. Other
well-known environmental treaties adopted during the period included the 1972 London
Convention which addresses dumping at sea; the 1973 MARPOL (marine pollution)
Convention and its 1978 Protocol; the 1973 Convention on the International Trade in
Endangered Species of Wild Fauna and Flora; and the 1982 United Nations Convention
on the Law of the Sea.
Another noteworthy development during this period was the integration of environ-
mental considerations into the activities of international economic and financial organisa-
tions such as the World Bank and the General Agreement on Tariffs and Trade (GATT).52
The impact of acts of international organisations also began to be felt, some of the better
examples being decisions relating to a moratorium on commercial whaling adopted by
resolution of the International Whaling Commission in 1982 and the decision by parties
to the 1989 CITES Conference to ban international trade in ivory.
An influential role in the development of international environmental law has been
played by a number of non-binding instruments which were adopted during this period.
These were the 1978 UNEP draft Principles (Principles of Conduct in the Field of the
Environment for the Guidance of States in the Conservation and Harmonious Utilisation
of Natural Resources Shared by Two or More States);53 the 1981 Montevideo Programme
48
See Sands (n 17) 40.
49
Birnie & Boyle (n 15) at 39; Sands (n 17) at 235–6.
50
At 57.
51
Sands (n 17) at 40.
52
See ibid at 42.
53
Ibid at 43–4.

for the Development and Periodic Review of Environmental Law;54 the World Charter for
Nature; the 1980 World Conservation Strategy followed by the 1991 Caring for the Earth
Strategy; the 1982 Nairobi Declaration; and the 1983 World Commission on Environment
and Development and its 1987 Brundtland Report.
The World Charter for Nature55

Adopted by the UN General Assembly in 1982,56 it contains non-binding ‘principles of
conservation by which all human conduct affecting nature is to be guided and judged’.
Its significance is that it has a more ecological focus than earlier anthropocentric instru-
ments, emphasising the protection of nature as an end in itself.57 It is widely accepted that
the norms contained in the Charter are likely to be reflected in future international law
developments through transformation into customary international law.58
World Conservation Strategy/Caring for the Earth59

The 1980 World Conservation Strategy60 had three main objectives: that essential eco-
logical processes and life-support systems be maintained; that genetic diversity be pre-
served; and any use of species or ecosystems must be sustainable.61 The 1991 Caring for
the Earth Strategy supplemented the original strategy with the twin aims of securing a
commitment to ‘sustainable living’ and translating its principles into practice.62
The World Commission on Environment and Development63

This was established by the UN General Assembly in 1983 and it reported in 1987 (the
so-called Brundtland Report).64 The WCED’s broad task was to provide a ‘global agenda
for change’.65 More specifically its objectives were to re-examine critical environment and
development issues and formulate realistic proposals for dealing with them; to propose
new forms of international co-operation on these issues that would influence policies and
events in the direction of needed changes; and to raise the levels of understanding
and commitment to action of individuals, voluntary organisations, businesses, insti-
tutes, and governments.66
54
Ibid at 44–5.
55
See Birnie & Boyle (n 15) at 561–3; Sands (n 17) at 45–7.
56
UNGA res 37/7 28 October 1982.
57
Sands (n 17) at 42.
58
59
See, generally, Sands (n 17) at 47–8; John Yeld Caring for the Earth South Africa: A Strategy for Sustain-
able Living (1993).
60
Prepared by the International Union for the Conservation of Nature (IUCN) assisted by UNEP, the World
Wildlife Fund (WWF), the FAO and UNESCO.
61
Sands (n 17) at 47.
62
IUCN, UNEP, WWF Caring for the Earth: A Strategy for Sustainable Living (1991). Sands (n 17) at 47.
63
See, generally, Sands (n 17) at 48–50; Birnie & Boyle (n 15) 563–4; Don Hinrichsen Our Common Future:
A Reader’s Guide (1987).
64
WCED Our Common Future (1987).
65
Hinrichsen (n 63) at 4.
66
WCED (n 64) at 3–4.

The core concept of the Report was sustainable development, and it focused on issues
of population, food security, the loss of species and genetic resources, energy, industry
and human settlements. It made several recommendations, on inter alia, the need for
institutional and legal change.67
At the same time, an Experts Group on Environmental Law proposed Legal Princi-
ples and Recommendations on Environmental Protection and Sustainable Development.
These principles were supposed to reflect the existing basic obligations of states based on
an assessment of existing hard and soft law and state practice.68 Also in 1987, the UN Gen-
eral Assembly adopted the ‘Environmental Perspectives to the Year 2000 and Beyond’,
prepared as a ‘broad framework to guide national action and international co-operation
on policies and programmes aimed at achieving environmentally sound development’.69
The Brundtland Report concludes with a ‘Call for Action’, requesting the UN General
Assembly to ‘transform this report into a UN Programme for Action on Sustainable
Development’.70 This concluding remark highlights probably the two most important
contributions of the WCED efforts. The first was that it gave the term ‘sustainable
development’ ‘a generally accepted definition and wide currency’.71 The second was that
it ‘led directly’72 to the United Nations Conference on Environment and Development
(UNCED), often referred to as the Earth Summit, held in Rio de Janeiro in June 1992.
4.4 UNCED and beyond

In December 1987 the UN General Assembly convened UNCED, the purpose of which
was to ‘elaborate strategies and measures to halt and reverse the effects of environmental
degradation in the context of strengthened national and international efforts to promote
sustainable and environmentally sound development in all countries’.73 The conference
was held in Rio de Janeiro, Brazil, in June 1992 and was probably the ‘largest international
gathering in the history of the planet’.74 Three non-binding instruments were adopted: the
Rio Declaration on Environment and Development, Agenda 21 and the UNCED Forest
Principles.75 In addition, two treaties, which had been in preparation before UNCED,
were opened for signature: the Convention on Biological Diversity and the UN Frame-
work Convention on Climate Change.
The Rio Declaration76 is a statement of twenty-seven principles, some of them restate-
ments of the Stockholm principles,77 setting out the basis upon which states and individu-
67
68
Birnie & Boyle (n 15) at 563; Sands (n 17) at 50.
69
UNGA res 42/186 11 December 1987.
70
WCED (n 64) at 343.
71
Konrad von Moltke ‘Why UNEP matters’ 1996 Green Globe Yearbook 55 at 55.
72
Ibid. See also Sands (n 17) at 48 and 52.
73
UNGA res 44/228 para 3.
74
Von Moltke (n 71). UNCED was attended by 176 states, more than fifty intergovernmental organisations
and a few thousand non-governmental organisations (Sands (n 17) at 52).
75
Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development for All Types of Forest.
76
For a detailed discussion of the Rio Declaration, see Sands (n 17) at 54–7; Birnie & Boyle (n 15) at 565.
77
See Von Moltke (n 71) at 55 who describes the Declaration as ‘without binding force which largely dupli-
cates the work of the 1972 Stockholm Conference’.

als are to co-operate and further develop ‘international law in the field of sustainable
development’.78 It is non-binding, but some provisions may reflect existing or emerging
rules of customary law, whereas others may indicate the way developments may occur
in the future.79
Agenda 2180 is a massive and complex blueprint and action plan for the whole interna-
tional community, linking development and environmental action for ‘the fulfilment of
basic needs, improved living standards for all, better protected and managed ecosystems
and a safer, more prosperous future’.81 Its four sections address social and economic
dimensions, conservation and management of resources for development, strengthening
the role of major groups and means of implementation. Its contribution to international
law is not certain, though it has been suggested that it could do one of three things: it
could provide an agreed global framework for the development and application of inter-
national legal instruments; parts of it might be considered to reflect ‘instant’ rules of
international law; or it may reflect consensus on principles, practices and rules which
might contribute to new customary law principles (through the crystallisation process).82
It may also be an example of ‘soft law’ (and, in this regard, Agenda 21 is seen as having
a very important influence on the increased importance of soft law in the international
environmental law sphere).83 On the other hand, Agenda 21 has also been described as ‘so
large as to defy practical implementation’ and ‘so hedged with caution it can be quoted to
support almost any position’.84
It is fair to say that international developments after 1992 have been substantially influ-
enced by the UNCED instruments.
World Summit on Sustainable Development

This was held in Johannesburg in September 2002 to mark the tenth anniversary of
UNCED. The general focus of the WSSD was development in order to eradicate pov-
erty. The Summit produced the Johannesburg Declaration on Sustainable Development,
essentially a short statement of universal commitment to sustainable development, and
a Plan of Implementation ‘long on general commitments and aspiration, but short on
specific actions to be taken’.85
5. General principles of international environmental law

While there are certain general principles which can be discerned from various interna-
tional instruments, both hard and soft, which have broad, if not universal, support, there
78
Principle 27.
79
Sands (n 17) at 54.
80
See Sands at (n 17) at 57–63; Birnie & Boyle (n 15) at 565–6 for detailed discussion.
81
Chapter 1, para 1.1.
82
Sands (n 17) at 58.
83
Stanley P Johnson The Earth Summit: The United Nations Conference on Environment and Development
(1993) at 127.
84
Von Moltke (n 71) at 55.
85
Sands (n 17) at 66.

are only two principles which are ‘sufficiently substantive at this time to be capable of
establishing the basis of an international cause of action’.86 These are as follows:
5.1 The principle of state sovereignty and responsibility not to cause

environmental damage87
Principle 21 of the Stockholm Declaration provides:
States have, in accordance with the Charter of the United Nations and the principles of interna-
tional law, the sovereign right to exploit their own resources pursuant to their own environmen-
tal policies, and the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other states or of areas beyond the limits of national
jurisdiction.
This principle was confirmed in the Rio Declaration’s Principle 2, which added two
words to the original, referring to states’ ‘own environmental and developmental poli-
cies’. Sovereignty and responsibility are essentially two sides of the same coin: state
sovereignty (which entails a state’s freedom to act without outside interference) cannot
be exercised in such a way that it interferes with another state’s sovereignty, which gives
rise to the responsibility element. This was the basis for the decision in the Trail Smelter
case,88 and the principle can be used to support a demand by states that their territory not
be polluted from sources beyond their borders. In such cases damages can be claimed
by the victim state,89 but the principle requires not only reparation, but also the taking of
preventive measures before damage takes place.90 This could be said to incorporate the
‘precautionary principle’.91
Two issues arise in the context of this principle which are not free from speculation.
They are, first, the issue of what action can be taken if a state, in exercising its sovereignty,
causes damage to what could be regarded as ‘a contemporary version of the Roman law
concept of res omnium communes and which as such constitute[s] “the common heritage
of all people”’.92 The second is whether international law can be invoked where a state
commits acts or causes conditions within its borders which ‘adversely affect the ecosys-
tem of that state without directly or immediately having an effect on any other state’.93
In respect of the issue of damage to the global commons, recognised in many
instruments,94 it has been suggested that, ‘[i]t is not at all certain … whether there exists
an actio popularis in customary international law which would entitle states to claim on
behalf of the general interest all people have in the integrity of the global environment’.95
86
Ibid at 232.
87
Birnie & Boyle (n 15) at 104–5 refer to the ‘duty to prevent, reduce and control pollution and environmen-
tal harm’; see also 109ff.
88
See above, 51.
89
As in the Trail Smelter case.
90
91
Birnie & Boyle (n 15) at 115–21. The principle is discussed above, 9.
92
JD van der Vyver ‘State sovereignty and the environment in international law’ (1992) 109 SALJ at 485.
93
Ibid at 485–7.
94
95
DJ Devine ‘International environmental law’ in HA Strydom & ND King Fuggle & Rabie’s Environmen-
tal Management in South Africa (2009) at 134.

As far as the second question is concerned, Van der Vyver cites a number of inter-
national instruments as evidence to suggest that there is a growing international con-
sciousness and sense of obligation which could in time lead to a customary international
law rule recognising that there is state responsibility in cases of environmental damage
within a state’s borders where this would not directly affect any other state.96
5.2 The principle of good neighbourliness and international co-operation

Although it does not directly address environmental matters, Article 74 of the UN Char-
ter reflects the agreement of members of the UN that ‘their policy in their metropolitan
areas must be based on the general principle of good neighbourliness’ and must take
account of ‘the interests and well-being of the rest of the world, in social, economic and
commercial matters’. This duty is reflected in the maxim sic utere tuo, ut alienum non
laedas.97 The obligation of international co-operation in cases of environmental risk is
reflected in Stockholm Principle 2498 and Rio Principle 27,99 in addition to numerous
other international instruments.100
This principle is particularly evident in the case of shared resources.101 It also requires
prior notification, consultation and negotiation before activities involving environmental
risk take place,102 as well as notification and due diligence in cases of emergencies.103
5.3 Other principles104

Doubt exists over the present legal status of certain other principles which could neverthe-
less be emerging as principles of customary international law. These include the principle
of preventive action; the principle of sustainable development; the polluter pays principle;
and the principle of common but differentiated responsibility.105 Most of these principles are
discussed above,106 but the last requires some explanation here, because it is an important (if
not general) principle of international environmental law.
Common but differentiated responsibility refers, in short, to the fact that international
environmental law does not apply equally to all states.107 In several cases, distinctions are
96
Van der Vyver (n 92) at 493–4.
97
‘Use your own property in such a manner as not to injure that of another.’ Sands (n 17) at 249; Birnie &
Boyle (n 15) at 104.
98
This requires that ‘co-operation through multilateral or bilateral arrangements or other appropriate means
is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting
from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and
interests of all states’.
99
This requires that ‘states and people shall co-operate in good faith and in a spirit of partnership in the
fulfilment of the principles embodied in this Declaration and in the further development of international
law in the field of sustainable development’.
100
101
See the Lac Lanoux case (n 45) at 70; Birnie & Boyle (n 15) at 126; Devine (n 95) at 135.
102
103
Ibid at 128.
104
See, generally, Sands (n 17) Chapter 6 and Birnie & Boyle (n 15) Chapter 3.
105
Sands (n 17) at 231ff and Birnie & Boyle (n 15), generally, Chapter 3.
106
See 7ff.
107
See Birnie & Boyle (n 15) 100–4; Sands (n 17) 285–9.

drawn between developed and developing states, so that all states have responsibilities
under the legal regime in question, but not the same responsibilities. Examples of this are
the Ozone, Climate Change and Biodiversity Conventions. The principle is expressed in
Rio Principle 7:
States shall co-operate in a spirit of global partnership to conserve, protect and restore the
health and integrity of the Earth’s ecosystem. In view of the different contributions to global
environmental degradation States have common but differentiated responsibilities. The devel-
oped countries acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the global environment
and the technologies and financial resources they command.
6. Environment and trade

International trade is governed by the General Agreement on Tariffs and Trade (GATT)
and the World Trade Organisation (WTO). The basic objective of these institutions is the
liberalisation of trade between countries, and to avoid barriers, such as tariffs, quotas
and bans being imposed by individual countries in such a way that trade is impeded.
These free trade objectives from time to time come into conflict with measures adopted
by individual countries (or groups of countries, such as the European Union) that are
ostensibly aimed at environmental conservation.
Where conflict arises, this may have to be settled by the GATT/WTO Dispute Settle-
ment Understanding. In terms of this Understanding, a Panel is set up to decide the case.
There have been several cases involving environmental concerns, of which two will be
considered here as examples.
In the Tuna-Dolphin cases108 the USA imposed an import embargo on tuna that had
not been caught in a dolphin-friendly manner. The USA attempted to justify this on the
basis that the measure was related to conservation of exhaustible natural resources, which
is an exception that may operate in appropriate cases. The Panel, however, held that this
exception would apply in the case of least trade restrictive measures. Since, in this case,
it was possible to adopt less restrictive means of meeting the objective, the US measure
was seen as unacceptable.
A second case, also involving the USA as the party adopting restrictive measures, was
the Shrimp/Turtle case.109 The USA banned the import of shrimps from certain countries
in Asia because of legislation that prohibited the import of shrimps without the use of a
‘turtle-excluding device’, which prevent turtles being caught together with the shrimps.
The Appellate Body decided that this restriction did meet the requirement of the exhaust-
ible natural resources exclusion mentioned above, but held that another aspect of the free
trade requirements relating to discrimination between countries had been violated.
The ‘trade and the environment’ debate is a particularly important one that cannot be
done justice to in a few paragraphs, but it is raised here merely to provide a taste of the
sorts of issues that arise in this context.110
108
30 ILM 154 (1991) and 33 ILM 839 (1991).
109
38 ILM 118 (1999).
110
For more detail, see Sands (n 17) Chapter 19 and Birnie & Boyle (n 15) Chapter 14.

7. Climate change
Climate change is perhaps the most important environmental concern facing the inter-
national community today.111 In its 2007 report, the Intergovernmental Panel on Climate
Change (IPCC) found that there are significant anthropogenic (human-induced) climate
change impacts and that prompt action is required to counteract adverse effects that could
be catastrophic to life on earth as we know it.112 Given its prominence, it is useful to
mention, albeit briefly, how international law is responding to this.113 The main control
instruments are the United Nations Framework Convention on Climate Change, which
was one of the products of the 1992 Earth Summit and its protocol, the Kyoto Protocol
of 1997.
The objective of the FCCC is to ‘achieve … stabilisation of greenhouse gas concentra-
tions in the atmosphere at a level that would prevent dangerous anthropogenic interfer-
ence with the climate system’.114 The obligations, such that there are, under the UNFCCC
were seen as inadequate and, for that reason, the Kyoto Protocol was adopted in order to
provide for enforceable targets.
The Kyoto Protocol, which entered into force in 2005 with the ratification of Russia,
distinguished between different categories of countries in a way that provides for common
but differentiated responsibilities. Developed countries and countries with economies in
transition (primarily former Iron-curtain countries) are required to reduce levels to speci-
fied targets between 2008 and 2012, while developing countries (including countries such
as China and India, and South Africa) are not subject to the same requirements.
The protocol also provides for mechanisms such as clean development mechanisms,
emissions trading and carbon sinks. South Africa has designated the Director-General of
Minerals and Energy as the national authority for its Clean Development Mechanism.115
Probably the most important issue currently in the international climate change agenda
is what happens once the Kyoto Protocol’s commitment period comes to an end in 2012.
There has been an international impasse in recent years, primarily because the major
player not a party to the Kyoto Protocol and, until recently, the biggest contributor to
climate change, the United States of America, is reluctant to enter into any agreement
containing binding emissions reduction targets unless other major emitters in the devel-
oping world (who were exempt from binding obligations under the Kyoto Protocol), such
as China and India, are also subject to binding targets. Developing countries, on the other
hand, are invoking the principle of common but differentiated responsibilities in arguing
that the major contributors to climate change in the past were the developed countries
and, moreover, were they to be bound to mandatory emissions reduction targets, their
economic growth would be stifled.116
111
See, for example, George Monbiot Heat (2006); Tim Flannery The Weather-Makers (2006); Stern Review
on the Economics of Climate Change (2006).
112
B Metz, OR Davidson, PR Bosch, R Dave & LA Meyer (eds) Contribution of Working Group III to the
Fourth Assessment Report of the Intergovernmental Panel on Climate Change, 2007 (2007).
113
For further detail, see Sands (n 17) at 357–81; Birnie & Boyle (n 17).
114
Art 2.
115
GN R721 in GG 27788 of 22 July 2005.
116
See Daniel Bodansky ‘The Copenhagen Climate Change Conference: A postmortem’ (2010) 104 Ameri-
can Journal of International Law 230.

South Africa’s response to climate change is discussed in Chapter 10.

There are other international environmental concerns, such as transboundary move-
ment of hazardous waste and species extinction, which are addressed elsewhere in the
book.
8. Important international treaties

Important international law treaties in the environmental sphere are given below (in
chronological order).117 For further information, most of the conventions have their own
websites which contain detail on documentation, background, parties, new developments
etc. These are (where they have been located) indicated in the table that appears at the
end of this Chapter.
8.1 International Convention for the Regulation of Whaling 1946 (ICRW)

This convention regulates conservation and controlled utilisation of whales, and it estab-
lishes the International Whaling Commission.
8.2 The Antarctic Treaty 1959

The objectives of this treaty are to ensure that Antarctica is used only for peaceful pur-
poses, to ensure the continuance of scientific investigation and international co-operation
in such investigation, and to set aside disputes over territorial sovereignty. The treaty pro-
vides the umbrella for a number of important international environmental instruments,
including the Convention for the Protection of Antarctic Seals 1972, the CCAMLR,118
and the Madrid Protocol on Environmental Protection to the Antarctic Treaty. The treaty
includes an extensive set of binding conservation measures.
8.3 International Convention for the Conservation of Atlantic Tunas 1966

8.4 International Convention on Civil Liability for Oil Pollution Damage
1969
This convention makes provision for compensation to people who suffer damage from oil
pollution, providing for, inter alia, strict liability and obligatory insurance.
8.5 A
frican Convention on the Conservation of Nature and Natural
Resources 1968
This comprehensive convention addresses conservation of wildlife and other natural
resources, making special provision for endangered species and dealing with issues
such as conservation education, research and the integration of conservation and devel-
opment. It has now been replaced by a newer convention of the same name, entered into
117
This is not a comprehensive list. It focuses on so-called multilateral environmental agreements or MEAs,
which most commentators would regard as the more important international legal instruments in the envi-
ronmental sphere.
118
See below.

in Maputo in 2002, which has been ratified by only a few states and is consequently
not yet in force.
8.6 International Convention Relating to Intervention on the High Seas in

Cases of Oil Pollution Casualties 1969
The convention allows states to take measures outside their territorial waters to prevent
or otherwise address danger from oil pollution.
8.7 Convention on Wetlands of International Importance 1971 (Ramsar

Convention)
Recognising the ecological and other value of wetlands, this convention aims at stem-
ming the loss of wetlands and to promote their ‘wise use’.
8.8 Convention on the Prevention of Marine Pollution by Dumping of

Wastes and Other Matter 1972 (London Convention)
The convention distinguished between different categories of substances, prohibiting
disposal at sea of some and requiring a permit for disposal of others. The 1972 conven-
tion was superseded by the 1996 Protocol to the London Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter 1972, which came into effect
in 2006, and which prohibits the dumping at sea, without permit, of any substance that is
not listed on Annex 1 of the protocol.
8.9 Convention on International Trade in Endangered Species of Wild

Fauna and Flora 1973 (CITES)
The convention regulates the trade of endangered species in order to assist conservation
of the species in question. A system of appendices differentiates between species of dif-
fering status as far as regulation of trade is concerned, and a Conference of the Parties to
CITES meets periodically to assess these and other issues.
8.10 International Convention for the Prevention of Pollution from Ships

1973 (MARPOL)
As the name suggests, the MARPOL Convention addresses marine pollution by a num-
ber of substances, including oil. It incorporates a 1978 Protocol.
8.11 Convention Concerning the Protection of the World Cultural and

Natural Heritage 1975 (World Heritage Convention)
The convention is aimed at establishing an effective system of collective protection of
cultural and natural heritage of outstanding universal value, organised on a permanent
basis and in accordance with modern scientific methods. It provides for the World
Heritage List of sites of ‘outstanding universal value’ and the World Heritage Fund,
aimed mainly at protection of such sites in developing countries where resources are
scarce.

8.12 C
onvention on the Conservation of Migratory Species of Wild Animals
1979 (Bonn Convention)
Aimed at conservation of wild animal species which migrate across national boundaries
by the development of co-operative agreements, the convention has not been signed by
any of South Africa’s immediate neighbours.
8.13 Convention on the Conservation of Antarctic Marine Living Resources

1980 (CCAMLR)119
8.14 United Nations Convention on the Law of the Sea 1982 (UNCLOS)
The essential objective of this comprehensive convention is to establish a legal order for
the high seas and oceans which will facilitate international communication, and will
promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of
their resources, the conservation of their living resources, and the study, protection and
preservation of the marine environment. The convention only recently entered into force
(November 1994), without being signed by a number of important countries (like the
United States and the United Kingdom). Moreover, about eighty signatories, including
South Africa and the European Community, have not yet ratified or formally confirmed
the convention. The Agreement for the Implementation of the UNCLOS relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks was entered into under the UNCLOS umbrella.
8.15 Vienna Convention for the Protection of the Ozone Layer 1985
This convention was of the framework type and it was fleshed out by the 1987 Montreal
Protocol on Substances that Deplete the Ozone Layer and the London and Copenhagen
amendments to the latter. The objectives include the protection of human health and the
environment against harmful effects of human activities adverse to the ozone layer and
the adaptation of measures to control such activities. The Montreal Protocol and London
amendment require the reduction of consumption and production of certain substances,
including chlorofluorocarbons (CFCs), by specified amounts within set time-frames. The
Copenhagen amendment accelerates these deadlines.
8.16Convention on Assistance in the Case of a Nuclear Accident or Radio-

logical Emergency 1986 (Assistance Convention)
The objectives of this convention are to provide a framework for provision of assistance
in nuclear emergencies, and to minimise consequences and to protect humans and the
environment from the effects of radioactive releases. The International Atomic Energy
Agency (IAEA) administers the convention.
119
See Green Globe Yearbook 156–7; Sands (n 17) at 523–4; Simon Lyster International Wildlife Law: An
analysis of international treaties concerned with the conservation of wildlife (1985) Chapter 9.

8.17 Convention on Early Notification of a Nuclear Accident 1986

(Notification Convention)
The early provision of information about nuclear accidents in order to minimise adverse
consequences is the objective of this convention. It is also administered by the IAEA.
8.18 Convention on the Control of Transboundary Movements of Hazardous

Wastes and their Disposal 1989 (Basel Convention)
The main aims of the convention are to control and reduce transboundary movement
of hazardous wastes, and the convention regulates such activity with a view to waste
minimisation and assistance of developing countries in their waste management efforts.
8.19 Convention on the Ban of the Import into Africa and the Control of
Transboundary Movements and Management of Hazardous Wastes
within Africa 1991 (Bamako Convention)
Limited to member states of the African Union, this convention aims to protect mem-
ber states and other developing countries from the dangers posed by hazardous wastes.
It differs from the Basel Convention in a number of ways, probably the most important
being that it prohibits the import into Africa of hazardous waste from non-contracting
parties.
8.20 Convention on Biological Diversity 1992

This convention is aimed at ensuring the conservation of biological diversity and sus-
tainable use of its components, and the fair and equitable sharing of the benefits of the
utilisation of genetic resources.
8.21 The Framework Convention on Climate Change (UNFCCC) 1992

This convention is aimed at stabilising greenhouse gas concentrations in the atmosphere,
requiring states, inter alia, to take steps to limit emissions of greenhouse gases by humans.
8.22 Convention to Combat Desertification 1994

This is not yet in force and South Africa has not yet ratified this convention, which aims
to combat desertification and mitigate the effects of drought.
8.23 Kyoto Protocol (to the UNFCCC) 1997

This is aimed at providing implementation of the UNFCCC, in particular setting targets
for the emission of greenhouse gases, amongst other mechanisms.
8.24 Convention on the Prior Informed Consent Procedure for Certain

Hazardous Chemicals and Pesticides in International Trade
(Rotterdam Convention) 1998
This convention, often referred to as the PIC Convention, provides for a prior informed
consent procedure by countries importing hazardous chemicals, including pesticides.

8.25 C
onvention on Persistent Organic Pollutants (Stockholm Convention)
2001
The so-called POPS Convention aims at eliminating identified persistent organic
pollutants.
Table: International environmental instruments

This table contains information about the international environmental law conventions
and treaties to which South Africa is a party. Note that many of the websites of the
conventions are sources of information on the context of the instruments, as well as text,
decisions of conferences of the parties, member states etc.
Common name of Full name of Convention South Africa Convention website

Convention ratified
CITES Convention on Interna- 15 July 1975 www.cites.org
tional Trade in Endan-
gered Species of Wild
Fauna and Flora
Ramsar Convention Convention on Wet- 12 March www.ramsar.org
lands of International 1975
Importance especially as
Waterfowl Habitat
Convention on Bio- Convention on Biological 2 November www.biodiv.org
logical Diversity Diversity 1995
Bonn Convention Convention on the Con- December http://www.wcmc.
servation of Migratory 1991 org.uk/cms/
Species of Wild Animals (accession)
UNCCD Convention to Combat 30 September http://www.unccd.int
Desertification 1997
World Heritage Convention concerning 10 July 1997 http://whc.unesco.
Convention the Protection of the org/nwhc/pages/doc/
World Cultural and Natu- main.htm
ral Heritage
UNFCCC or Climate UN Framework Conven- 29 August http://unfccc.int/
Change Convention tion on Climate Change 1997
Basel Convention Convention on the Control May 1994 http://www.basel.int/
of Transboundary Move-
ments of Hazardous Waste
and their Disposal
Rotterdam Convention on the 4 September http://www.pic.int/
Convention Prior Informed Consent 2002
Procedure for Certain (acceded)
Hazardous Chemicals and
Pesticides in International
Trade


Convention ratified
Stockholm Convention Convention on Persistent 4 September http://www.pops.int/
on Persistent Organic Organic Pollutants 2002
Pollutants (POPS
Convention)
Vienna Convention on Convention on the Protec- 15 http://www.unep.org/
the Protection of the tion of the Ozone Layer January 1990 ozone/vc-text.shtml
Ozone Layer (acceded)
Montreal Protocol Protocol on Substances 15 http://www.unep.
that Deplete the Ozone January 1990 org/ozone/montreal.
Layer (acceded) shtml
Antarctic Treaty Antarctic Treaty 21 June 1960 http://www.scar.org/
treaty/
UNCLOS UN Convention on the 20 August http://www.un.org/
Law of the Sea 1997 Depts/los/index.htm
Straddling Fish Agreement for the 2 July 2002 http://www.
Stocks Agreement Implementation of the un.org/Depts/
UNCLOS relating to the los/convention_
Conservation and Man- agreements/
agement of Straddling convention_
Fish Stocks and Highly overview_fish_
Migratory Fish Stocks stocks.htm
CCAMLR Convention on the 1982 http://www.ccamlr.
Conservation of Antarctic org/
Marine Living Resources
ICRW International Convention 1946 http://www.iwcoffice.
on the Regulation of org/commission/
Whaling convention.htm
ICCAT International Convention 7 October http://www.iccat.es/
for the Conservation of 1967
Atlantic Tunas
London Convention Convention on the Preven- 1978 http://www.
tion of Marine Pollution londonconvention.
by Dumping of Wastes org/London_
and Other Matter Convention.htm
International Conven- International Convention http://www.imo.org
tion on Civil Liability on Civil Liability for Oil
for Oil Pollution Pollution Damage
Damage
International Conven- International Convention http://www.imo.org
tion relating to Inter- relating to Intervention on
vention on the High the High Seas in Cases of
Seas in Cases of Oil Oil Pollution Casualties
Pollution Casualties
MARPOL International Convention http://www.imo.org
for the Prevention of Pol-
lution from Ships


Convention ratified
Assistance Convention Convention on Assitance
in the Case of a Nuclear
Accident or Radiological
Emergency
Notification Convention on Early
Convention Notification of a Nuclear
Accident
The South African Department of Environmental Affairs and Tourism website has con-
siderable information on most of these conventions, including contact persons within the
department responsible for their domestic implementation — see http://www.environ-
ment.gov.za/PolLeg/Conventions/conv_00082002.htm.

4
Water Law and the Environment
1
According to 2004’s National Water Resource Strategy (NWRS),2

South Africa is located in a predominantly semi-arid part of the world. The climate varies from
desert and semi-desert in the west to sub-humid along the eastern coastal area, with an average
rainfall for the country of about 450 mm per year (mm/a), well below the world average of about
860 mm/a, while evaporation is comparatively high. As a result, South Africa’s water resources
are, in global terms, scarce and extremely limited. The country has no truly large or navigable
rivers, and the combined flow of all the rivers in the country amounts to approximately 49 000
million cubic metres per year (m³/a), less than half of that of the Zambezi River, the closest
large river to South Africa. Groundwater plays a pivotal role in especially rural water supplies.
Because of the predominantly hard rock nature of the South African geology, only about 20
per cent of groundwater occurs in major aquifer systems that could be utilised on a large scale.
South Africa relies primarily on surface water resources for most of its urban, industrial
and irrigation requirements.3 There are approximately 320 major dams with a total capac-
ity of more than 32 400 million cubic metres, equivalent to 66 per cent of the total mean
annual runoff.4 In the northern parts of the country5 both the surface and groundwater
resources are nearly fully developed and utilised,6 while in the south-eastern region of
the country7 there are still significant undeveloped and little-used resources.8 According
to the NWRS, ‘the total mean annual runoff of South Africa under natural (undeveloped)
conditions is estimated at a little over 49 000 million m³/a, which includes about 4 800
million m³/a and 700 million m³/a of water originating from Lesotho and Swaziland
respectively, which naturally drains into South Africa’.9
In 2004, the NWRS estimated that the total reliable local yield was (for the year 2000)
13 227 million m3/a and the total local requirements 12 871 million m3/a, leaving a posi-
tive balance of 186 million m3/a.10 These global figures, however, hide the fact that, of the
nineteen water management areas (WMAs) in the country (see figure on page 76 below),
ten were in deficit. The Inkomati area, for example, was in deficit of 258 million m3/a.
More recent (2006) statistics show that only six WMAs are in a surplus situation, taking
into account projected demand.
1
Parts of this chapter are based on my article ‘Poisoning the right to water in South Africa: What can the
law do?’ submitted for publication to the International Journal of Rural Law and Policy (2011).
2
Department of Water Affairs and Forestry (DWAF) National Water Resource Strategy (September 2004)
at 15.
3
Ibid at 20.
4
Ibid.
5
Water management areas 1 to 5 and 8 to 10 — see diagram below at 76.
6
DWAF (n 2) at 20.
7
Water management areas 11, 12 and 13.
8
DWAF (n 2) at 20.
9
Ibid.
10
Ibid at 36.
68

Water Law and the Environment 69
More recently, the Department of Water Affairs (DWA)11 released Integrated Water
Resource Planning for South Africa,12 which addresses the water resource situation in
each of the 26 priority economic growth areas identified in the National Spatial Develop-
ment Plan of 2006.13 The DWA ‘has undertaken reconciliation strategy studies for all
of the country’s major metropolitan areas and some of the large river systems support-
ing key development zones’.14 These water balance reconciliation studies address future
water requirement scenarios; water resources (sources of current and future supply);
other ‘interventions’ that could reduce demand or add to water availability (such as water
demand management measures or increased use of groundwater); ways of reconciling
the requirements for water with the available resources; the possible impact of climate
change; strategy development; and the monitoring and updating of these strategies.15 The
bottom line of this report is that, where water management areas are not currently facing
water shortages, most (if not all) will be facing shortages in the future in the absence of
appropriate intervention.
Until recently, South African water law has developed inappropriately for the situa-
tion of water scarcity. Moreover, access to water rights has been skewed heavily to the
detriment of the majority of the population. With the onset of democracy in South Africa
in 1994, water law was reformed both to address the question of equitable access and to
provide for the government to exercise management control over water resources. This
is to be achieved by the National Water Act 36 of 1998, which is widely regarded as
a ground-breaking Act. Change will not be achieved overnight, however, and the new
water law and policy envisage a period of transition during which the full implementa-
tion of the Act will be gradually phased in. While there are several challenges facing the
government in this regard, much of the machinery has been established for realisation of
the objectives of the new law.
1. Brief history of South African water law

In the period between 1652 (Dutch colonisation of the Cape) and Union in 1910, the
common law gradually changed, through several decisions of the Supreme Court,16 from
a position where the state was regarded as dominus fluminis (where the state had the right
to allocate water) to one where riparian rights were the dominant paradigm. This was,
quite clearly, unfortunate for a water-scarce country — the eminent author JC de Wet
commented that ‘this position could not be tolerated in [South Africa] where water is one
of the scarcest and therefore most valuable of our natural resources, and … the principles
of Roman Law [are] eminently better suited to South African conditions than the doctrine
of riparian rights’.17
11
The ‘Forestry’ part of the department was transferred elsewhere following restructuring of government
departments after President Zuma became president.
12
Department of Water Affairs (DWA) Integrated Water Resource Planning for South Africa (2010).
13
Ibid at 20.
14
Ibid.
15
Ibid.
16
See Retief v Louw (1874) 4 Buch 165; Hough v Van der Merwe (1874) Buch 148; Van Heerden v Wiese
(1880) Buch AC 5.
17
JC de Wet ‘One hundred years of water law’ (1959) Acta Juridica 31 at 33.

1.1 The Water Act 54 of 1956

After Union, the 1912 Irrigation Act was essentially a consolidating measure.18 The Water
Act replaced the Irrigation Act in 1956.19 Although the Water Act was seen as neces-
sary in order to change the emphasis of water supply from agriculture to the burgeoning
mining and industry sector, the Act did not replace the riparian rights system. It is also
worth noting that, although the Act was enacted during the period of the development of
the government’s apartheid legislative structure, the Act was not pre-eminently part of
that structure.20 Yet the Act’s entrenchment of riparian rights (even if only partial) led to
the majority of the population being restricted in their access to water, such inequality in
access almost invariably being suffered by the black population.21
Central to the operation of the Act was the distinction between private and public
water.22 Private water was defined as all water which rises or falls naturally on any land or
naturally drains or is led onto one or more pieces of land which are the subject of separate
original grants, but is not capable of common use for irrigation purposes.23 The owner
of the land on which private water was found had exclusive use and enjoyment of such
water,24 but was not permitted to pollute it.25
The sale or disposal of private water for use by any other person or any other land, or
the conveyance of such water by the owner beyond the boundaries of the land on which
the water is found for the own use of such owner, was prohibited, except under authority
of a permit from the Minister of Water Affairs.26 There were some exceptions to this rule,
including that the prohibition did not apply to an owner of land situated in the area of any
municipal institution or local authority.27
Public water was defined as any water flowing or found in or derived from the bed of
a public stream, whether visible or not.28 ‘Public stream’ was defined as a natural stream
of water which flows in a known and defined channel, whether or not such channel is dry
during any period of the year and whether or not its conformation has been changed by
18
Irrigation and Conservation of Waters Act 8 of 1912.
19
Water Act 54 of 1956.
20
Raylene Keightley ‘The history of the Water Act 54 of 1956 in the light of new and emerging policy’
in Land and Agriculture Policy Centre Submissions to the Department of Water Affairs and Forestry
(unpublished August 1995) at 13.
21
Ibid at 13–14.
22
For further detail, see WJ Vos Principles of South African Water Law (1978) Chapters 2, 3 and 5; Hubert
Thompson The Constitution of the Republic of South Africa 1993: Understanding the Existing Framework
of the Water Law and Preparing for a New Law (1994) at 33–46; JH O’Keeffe, M Uys & MN Bruton
‘Freshwater systems’ and MA Rabie & JA Day ‘Rivers’ in RF Fuggle & MA Rabie (eds) Environmental
Management in South Africa (1992) at 295–7 and 660–1 respectively.
23
Section 1. The words ‘which rises … naturally on any land’ were required to be taken to mean that point
on land where water rises onto the surface from its source (see s 5).
24
Section 5(1). This was subject to the proviso that, where the water flows in a known and defined channel
over more than one piece of land, a lower owner who can show that he has used beneficially a share of the
water for an uninterrupted period of thirty years is entitled to claim from the owner of the land on which
the water arises a reasonable share in such water.
25
Section 23.
26
Section 5(2).
27
Section 5(3)(c), although the Minister was permitted, on application of the authority concerned, to make
such prohibition applicable within such area (s 5(3A)(a)).
28
Section 1.

artificial means, if the water therein is capable of common use for irrigation on two or
more pieces of land riparian thereto which are the subject of separate original grants or on
one such piece of land and also on [state] land which is riparian to such stream, provided
that a stream which fulfils the foregoing conditions in part only of its course shall be
deemed to be a public stream as regards that part only.29
The right to use of public water was divided into three categories: agricultural
purposes,30 urban purposes31 and industrial purposes.32 The right to use in respect of the
first two categories rested in an owner of land riparian to the public stream. Such owner
had a share of the normal flow33 of the water in the public stream, such share fixed by the
water court.34 A riparian owner was permitted to use all the surplus water35 for beneficial
agricultural or urban purposes and need not abate such use in favour of other riparian
owners.36 Certain persons who were not riparian owners were permitted to use public
water for limited purposes specified by the Act.37
The use of public water for industrial purposes was subject to the permission of a water
court or the Minister,38 but a person being supplied with water by a local authority or
similar body with the right to supply and control water was not required to have permis-
sion from the water court.39 Most industries are situated in urban areas and are supplied
with water by local authorities or water boards, and they would therefore not require the
permission of the water court for use of water.
A person was entitled to use public water for any of the defined purposes only to the
extent that he used such water beneficially.40 Use of public water for any purpose which
amounted to a wastage of such water was prohibited and was an offence.41 There was no
fee for using water extracted directly from a public or private water source.
29
Ibid.
30
‘Use for agricultural purposes’ was defined in s 1 as use for the irrigation of land, and included use by a
riparian owner or any other person who had acquired a right to the use of water for the irrigation of land,
for domestic purposes or for the purpose of water-borne sanitation or for the watering of stock or gardens
or use for or in connection with an intensive animal feeding system or the breeding or keeping or growing,
for commercial purposes, of any aquatic animal or plant or any amphibian.
31
Defined as use, by urban and rural people, for purposes for which water was ordinarily used by a local
authority or by the inhabitants of such an area, including use for domestic purposes or for the purpose of
water-borne sanitation or for the watering of gardens, the watering or cleaning of streets or for industrial
purposes (s 1).
32
‘Use for industrial purposes’ meant use of water (including effluent supplied by a person other than the
user) for or in connection with specified industrial processes set out in the definition section (s 1).
33
Defined as the quantity of public water actually and visibly flowing in that public stream which, under
a system of direct irrigation from that stream, whether by furrows or otherwise, but without the aid of
storage, could be beneficially used for the irrigation of land riparian to such stream (s 1).
34
Section 9(1), read with s 52.
35
All water flowing in a public stream which was not normal flow (s 1).
36
Section 10(1).
37
See s 7 (watering stock or drinking, washing or cooking etc and use by a provincial administration officer
for purposes of road construction, maintenance etc) and s 14 (transport services).
38
Section 11(1).
39
Section 11(1)(ii).
40
Section 10(1).
41
Section 9(1)(a), read with s 170.

Ground water, which is water found underground, could be either public or private
water (depending on whether it accorded with the relevant definition), in which case it
was governed by the Water Act. Unfortunately, the situation with ground water was not
as simple as that, since it could also be ‘subterranean water’ if found in a subterranean
government water control area and hence under state control,42 or it could be such that
it was neither public nor private water.43 In the latter case it was subject to common-law
principles.44
The Water Act also had a relatively complex conceptual approach to water pollution,
regulating the matter differently depending on whether water was used for industrial pur-
poses, urban purposes or other purposes specified in the Act. A further noteworthy fea-
ture of the old water law and policy was the emphasis on supply management of water.45
The state did have the power, in certain circumstances, to restrict riparian owners’ rights,
although the state’s powers were considerably less than they are in other countries with
similarly scarce water resources. 46 The Act provided for the declaration of a number of
types of control areas, most of which could be declared where the control of the use of
water was deemed by the Minister to be desirable in the ‘public interest’ or ‘national
interest’. These control areas were subterranean government control areas,47 government
water control areas48 (which in turn could be declared irrigation districts),49 government
drainage control areas,50 catchment control areas,51 dam basin control areas,52 and water
sport control areas.
1.2 The transition from the 1956 Water Act to a new water law
With the advent of the new constitutional order, it was clear that issues prominent on the
agenda of the new government were redressing the impact of many years of apartheid,
including replacing the legislation underpinning discrimination and oppression, as well
as development. The water law, although not expressly a statute furthering apartheid,
would have to be overhauled in order to provide, primarily, for equitable access by all
South Africans to water. This process is detailed below. In order to appreciate the water
law reform in the mid–1990s, it will be useful to consider the constitutional context
within which this reform took place.
The environmental right discussed in Chapter 2 is clearly relevant, as is s 27 which
provides for the right to water as follows:
42
See below.
43
See Rosemary Lyster & Peter Lazarus ‘The problem with ground water in South African law’ (1995) 112
SALJ 440 at 445–50; O’Keeffe et al (n 22) at 304.
44
Lyster & Lazarus ibid.
45
Jan Glazewski Environmental Law in South Africa (2000) at 510.
46
Cf Australia, where the right to the use and flow of water is vested in the Crown in most states (see s 9
Northern Territory Water Act 1992; s 8 Western Australia Rights in Water and Irrigation Act 1914; s 2.1
Queensland Water Resources Act 1989; s 7 Victoria Water Act 1989).
47
Section 28.
48
Section 59. See also ss 62 and 63.
49
Sections 71 and 73.
50
Section 59(5).
51
Section 59(2).
52
Section 59(4)(a).

‘(1) Everyone has the right to have access to—

(a) …
(b) sufficient food and water; …
(2) The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of each of these rights.’
The new water legislation in South Africa must be considered in the context of the
requirements of these two fundamental rights. This is not to say that only these rights are
germane to the question of access to water. Other relevant rights recognised in the South
African Constitution include equality, dignity, right to life, property and administrative
justice.
The Constitution is also relevant as far as legislative and administrative competence
in the field of water is concerned.53 Water (like other ‘functional areas’ such as defence
and foreign affairs) appears on neither of Schedules 4 and 5, meaning that it is of exclu-
sive national legislative competence. This reflects the national importance of water in a
water-scarce country which requires water for human and economic development. The
control body for water is the national Department of Water Affairs and Forestry, which
has regional departments.
The new government initiated a process of developing a set of principles and objectives
for a new water law, based on extensive public consultation. This process culminated in
the publication of the White Paper on a National Water Policy for South Africa.54 This
document highlighted the water equity issues prevailing in 1997: between 12 and 14
million South Africans (out of a total population of about 40 million) were without access
to safe water and over 20 million were without adequate sanitation. The vast majority of
these were black people, mainly living in peri-urban and rural areas. The impact of this
on women, many of whom spent a lot of time and effort on fetching water, and children,
many of whom died from avoidable diseases resulting from inadequate sanitation and
lack of clean water, was specifically noted.55
Related to these considerations are the overall developmental objectives adopted by
the new government, reflected as important imperatives in the White Paper. At the heart
of the government’s development vision was the Reconstruction and Development Pro-
gramme (the RDP), which aimed not only at physical and infrastructural development,
but also at improvement in the quality of life of people as a precondition for growth.
Reflecting these concerns, the key programmes of the RDP were:
●● meeting basic needs;
●● developing human resources;
●● building the economy; and
●● democratising the state and society.
The key principles of the RDP were reflected in the somewhat controversial macro-eco-
nomic strategy known as the Growth, Employment and Redistribution Strategy (GEAR).
To address the needs of the rural poor, one of the focuses of the strategy, GEAR empha-
53
See discussion above, at 31ff.
54
Department of Water Affairs and Forestry (April 1997).
55
White Paper (n 54) at 15.

sised land reform and associated agricultural development and the provision of infra-
structure, notably water.
One of the other important considerations influencing new water policy development
was administrative efficiency in the light of likely administrative resource and capacity
constraints. It would clearly not be possible to introduce radical new policy initiatives
overnight, which suggested that existing rights might have to be recognised, even if only
for a transitional period. In this regard, the White Paper recognised that it would have to
take into account an estimated 40 000 permits, allocations, or scheduling provisions in
terms of the existing Water Act; 800 water court orders covering water use on perhaps
30 000 properties; and five million boreholes, ten percent of which are for irrigation or
provide over 150 kl of water daily.56
In the context of these and other considerations, the Department decided on a set of
principles which would underpin the new Act. These principles reflect certain prominent
themes. First, the government must be the custodian of water resources in the country
in order to manage effectively a critical strategic resource. Secondly, all South Africans
must have equitable access to water.57 The third theme is one which was not directly the
concern of earlier water legislation — that the hydrological cycle is a single system and
that the water needs of the environment are crucial for the healthy operation of that cycle.
Fourthly, the international dimensions of South Africa’s water resources and the rights of
neighbouring countries are recognised.
These, then, were the contextual imperatives and the fundamental principles underly-
ing the new Act.
2. The National Water Act 36 of 199858

According to s 2, the Act’s purpose is to ensure that the nation’s water resources are
protected, used, developed, conserved, managed and controlled in ways which take into
account, inter alia, the following factors:
‘(a) meeting the basic human needs of present and future generations;
(b) promoting equitable access to water;
(c) redressing the results of past racial and gender discrimination;
(d) promoting the efficient, sustainable and beneficial use of water in the public interest;
(e) facilitating social and economic development;
(f) providing for growing demand for water use;
(g) protecting aquatic and associated ecosystems and their biological diversity;
(h) reducing and preventing pollution and degradation of water resources;
(i) meeting international obligations;
(j) promoting dam safety;
56
Ibid at 27.
57
The theme of access to resources is not confined to the National Water Act, but most new (ie since 1994)
legislation addressing conservation of so-called natural resources also contains significant objectives
towards more equitable access to those resources. See, for example, the Marine Living Resources Act 18
of 1998 and the National Forests Act 84 of 1998, discussed below at 127 and 125 respectively.
58
Significant portions of the discussion of the new Act and some of the key implementation challenges
discussed below are based on a previous publication by the author, ‘South Africa’s National Water Act: A
five-year report card’ in Antonio Herman Benjamin (ed) Law, Water and the Web of Life (2003) 177–97.

(k) managing floods and droughts[.]’

The Act provides that the national government is the public trustee of the nation’s water
resources, which requires it to ‘ensure that water is protected, used, developed, con-
served, managed and controlled in a sustainable and equitable manner, for the benefit of
all persons and in accordance with its constitutional mandate’.59 The responsibility of the
Minister of Water Affairs and Forestry60 is to ‘ensure that water is allocated equitably and
used beneficially in the public interest, while promoting environmental values’.61
In order to meet these objectives, the Act contains several innovative features that are
departures from past practice, although there is a realisation that the transition from old
to new will not be a quick process. Consequently, the Act provides for existing rights to
be recognised until such time as all the requirements for complete implementation of the
new law are in place.
As noted above, the nation’s water resources are managed nationally, although the
Act envisages that the country will be divided into various water management areas, the
management of which will be carried out by catchment management agencies, estab-
lished in terms of Chapter 7 of the Act. These are indicated in the map below. Catch-
ment management must be carried out in accordance with the national water resource
strategy,62 which determines how the nation’s water resources are to be ‘protected, used,
developed, conserved, managed and controlled’.63 The strategy is intended to set out ‘the
strategies, objectives, plans, guidelines and procedures of the Minister and institutional
arrangements relating to the protection, use, development, conservation, management
and control of water resources within the framework of existing relevant government
policy’.64 To this end, the strategy is intended to address a comprehensive list of top-
ics relevant to these goals, including the establishment of water management areas,
the requirements of the Reserve (discussed below), the establishment of water demand
management principles and the setting of water quality objectives. Individual catchment
management strategies can be adopted by the relevant catchment management agencies.65
It is envisaged that these will be more detailed than the national strategy in respect of
their focus area, but will have to be consistent with the national strategy.66 The national
water resource strategy released in September 2004 is discussed below.
In addition to the strategies, the water planning regime under the National Water Act
includes a water resources classification system. This will involve determination of the
class of the water resource and the relevant resource quality objectives.67 One of the most
59
Section 3(1).
60
Hereafter referred to as ‘the Minister’.
61
Section 3(2).
62
Established in terms of s 5. Section 6 sets what out the contents of the strategy should be.
63
Section 5(3).
64
Section 6(1)(a).
65
Section 8.
66
Section 9(b).
67
Section 13. These objectives relate to the Reserve; the instream flow; the water level; the presence and
concentration of particular substances in the water; the characteristics and quality of the water resource
and the instream and riparian habitat; the characteristics and distribution of aquatic biota; the regulation
or prohibition of instream or land-based activities which may affect the quantity of water in or quality of
the water resource; and any other characteristic, of the water resource in question.

important aspects of this determination and an innovative feature of the Act is the notion
of the Reserve. This is defined as:
‘the quantity and quality of water required—
(a) to satisfy basic human needs by securing a basic water supply, as prescribed
under the Water Services Act68 for people who are now or who will, in the reason-
ably near future, be—
(i) relying upon;
(ii) taking water from; or
(iii) being supplied from,
the relevant water resource; and
(b) to protect aquatic ecosystems in order to secure ecologically sustainable develop-
ment and use of the relevant water resource.’69
Source: Department of Water Affairs and Forestry National Water Resource Strategy (September 2004) at 94.
The Reserve is a central feature of the water management system and it is important to note
the following characteristics of this concept. First, it applies to a relevant ‘water resource’
68
Act 108 of 1997 — described below.
69
Section 1 of the National Water Act.

which is defined as including a watercourse, surface water, estuary, or aquifer.70 Secondly,

Glazewski has noted that the White Paper on a National Water Policy for South Africa71
envisaged the basic needs component of the Reserve having priority over the ecological
component, but the definition in the Act does not appear to do this.72
The Reserve will have to be determined for individual water resources,73 in respect
of both the quantity and quality of water required. Clearly this entails administrative
decision-making of a highly technical nature and it is proving to be a time-consuming
process. Regulations setting out the process by which the Reserve is to be determined
(based on a decision, also in terms of the Act, as to what the class of the water resource in
question is) have been published.74 The decision as to the Reserve will in turn determine
the relevant resource water quality objectives, and decisions relating to water use will be
determined with reference to the Reserve, which will be a priority use. It is quite possible,
therefore, that the full quantity of water in a particular water resource may be required for
the Reserve, which would mean that no additional abstractions could be made from that
resource. Pending a final determination of the Reserve, the Act provides for a preliminary
determination,75 which is a necessary prerequisite for the authorisation of water use.
The pivotal concept of ‘water use’ is widely defined by the Act to include not only ‘use’
of water but also activities that could have an adverse impact on water resources. ‘Water
use’ is defined in s 21 as including:
‘(a) taking water from a water resource;
(b) storing water;
(c) impeding or diverting the flow of water in a watercourse;
(d) engaging in a stream flow reduction activity …;76
(e) engaging in a controlled activity …;77
(f) discharging waste or water containing waste into a water resource through a pipe, canal,
sewer, sea outfall or other conduit;
(g) disposing of waste in a manner which may detrimentally impact on a water resource;
(h) disposing in any manner of water which contains waste from, or which has been heated in,
any industrial or power generation process;
(i) altering the bed, banks, course or characteristics of a watercourse;
(j) removing, discharging or disposing of water found underground if it is necessary for the
efficient continuation of an activity or for the safety of people; and
(k) using water for recreational purposes.’
70
Ibid. ‘Watercourse’ means—
(a) a river or spring;
(b) a natural channel in which water flows regularly or intermittently;
(c) a wetland, lake or dam into which, or from which, water flows; and
(d) any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse,
and a reference to a watercourse includes, where relevant, its bed and banks;’.
71
(n 54) at para 5.2.2.
72
Glazewski (n 45) at 533.
73
Section 16.
74
GN R810 in GG 33541 of 17 September 2010.
75
Section 17.
76
Described below, 78.
77
Described below, 79.

The Act provides that a person wishing to use water must be licensed to do so, except in
three specified situations.78 The first exception is a water use permissible under Sched-
ule 1. Schedule 1 to the Act includes uses of water that are contemplated as likely to have
sufficiently insignificant impacts on water resources as to be exempt from the licensing
process. The Schedule includes, inter alia, water for reasonable domestic use, water-
ing of animals (excluding feedlots), recreational purposes and the discharge of water or
waste ‘into a canal, sea outfall or other conduit controlled by another person authorised
to undertake the purification, treatment or disposal of waste or water containing waste,
subject to the approval of the person controlling the canal, sea outfall or other conduit’.
The second exemption applies if the water use is a continuation of an existing lawful
use. Such a use is essentially a lawful use which has taken place at any time in the period
of two years immediately preceding the enactment of the Act.79 A user will be authorised
to continue such use until such time as it is required to be licensed in terms of the Act (if
at all).80 As a result of this exemption, many users (particularly riparian users) who had
rights to water prior to 1998 continue to do so, without changes to the amount of water
they used previously.
The Act’s third exemption is a water use that is permissible in terms of a general
authorisation issued in terms of s 39 of the Act. This section allows the responsible
authority to authorise water use generally, with respect to a specific water resource or for
a specific geographical area. Several general authorisations have already been issued in
respect of several activities — the taking of water from a water resource and storage of
water, irrigation of any land with waste or water containing waste generated through any
industrial activity or by a waterwork, discharge of waste or water containing waste into a
water resource, and disposing of waste in a manner which may have a detrimental impact
on a water resource.81 Further general authorisations were issued in respect of impeding
or diverting the flow of water in a watercourse, altering the bed, banks or characteristics
of a watercourse, and removing, discharging or disposing of water found underground if
it is necessary for the efficient continuation of an activity or for the safety of people.82 The
main benefit of general authorisations is that they obviate the need for persons subject
to them to apply for individual licences to engage in the activities in question, thereby
freeing up administrative resources to address other matters and eliminating cost, delay
and other burdens on the part of the users otherwise required to obtain a licence.
Two of the activities defined as water use by s 21 are stream flow reduction activi-
ties and controlled activities. Any such activities require a licence unless subject to the
exceptions discussed above. Stream flow reduction activities include ‘the use of land for
afforestation which has been or is being established for commercial purposes’ and any
other activity designated as such by the Minister’.83 Needless to say, this provision has
not been well received by the commercial forestry sector, since it raises the possibility
of their having, in effect, to be authorised and possibly to pay for the benefit of rain fall-
78
Section 22.
79
Section 32.
80
Section 34.
81
GN 1191 in GG 20526 of 8 October 1999, revised in GN 399 in GG 26187 of 26 March 2004.
82
GN 398 in GG 26187 of 26 March 2004.
83
Section 36.

ing on plantations, something which has been a free resource to date. Consideration is,
apparently, currently being given to the declaration of sugarcane farming, a significant
monoculture in particularly the eastern parts of the country, to be declared a stream
flow reduction activity. Controlled activities, such as irrigation of any land with waste
or water containing waste generated through any industrial activity or by a waterwork,
and an activity aimed at the modification of atmospheric precipitation, amongst other
activities,84 including activities declared to be controlled by the Minister,85 also require
licensing.
Among the detailed provisions relating to licensing and licensing procedures, the Act
provides for compulsory licensing for water resources identified as being under stress.86
The responsible authority is required to draw up an allocation schedule in response to
the applications for compulsory licences, which must be drawn up taking into account
several specified factors, including the requirements of the Reserve and existing licensed
users. Now that the water balance reconciliation data is known, there may well be parts
of the country where users will be subject to compulsory licensing in the near future.
Clearly the management of water under the National Water Act is a complex task that
involves substantial administration and the legislature has relieved the taxpayer’s burden
of paying for this by providing in Chapter 5 for the establishment of a pricing strategy
which entails the specification of water use charges, where the imposition of such charges
is seen as appropriate. This chapter also empowers the Minister to provide for financial
assistance to deserving recipients.
Various institutions are created by the Act. First, provision is made for catchment
management agencies (CMAs) essentially to decentralise management from the national
Department to various management areas throughout the country.87 In addition to the
CMAs, the Act provides for the establishment of water user associations, which are not
designed to carry out water management functions but to ‘operate at a restricted localised
level, and are in effect co-operative associations of individual water users who wish to
undertake water-related activities for their mutual benefit’.88 The 1956 Act provided for
a variety of water institutions — irrigation boards,89 subterranean water control boards
and water boards established for stock watering purposes — and these will continue until
such time as they are replaced by water user associations.90 Chapter 9 empowers the
Minister to establish advisory committees which, as the name suggests, will perform
primarily advisory functions, and the Minister also has the power to establish bodies to
implement international (water) agreements under Chapter 10. A Water Tribunal is estab-
lished under Chapter 15 to handle dispute resolution, especially appeals against a variety
84
Section 37.
85
Section 38.
86
Section 43.
87
Catchment Management Agencies are regulated by Chapter 7 of the Act.
88
Preamble to Chapter 8 of the Act.
89
Many irrigation boards, in fact, predated the Water Act of 1956. According to CG Hall Water Rights in
South Africa 4 ed (1974) at 8, about 300 to 400 irrigation boards were established in terms of the 1912
Irrigation Act and continued in existence to the date of writing (1974). Most of these boards would still
have been in existence in 1998.
90
Section 98.

of decisions that can be made in terms of the Act.91 Appeals from the Water Tribunal go
to the High Court.92
Enforcement is always a crucial component of any statutory management regime and
the National Water Act criminalises several activities including failure to comply with
conditions attached to permitted water uses and water pollution,93 for which the maxi-
mum penalty is a fine or five years’ imprisonment for a first offence. A court convicting
someone of an offence under the Act is empowered to order compensation for loss suf-
fered by any person as a result of non-compliance with the Act, which obviates the need
for a victim to initiate separate civil proceedings.94
In S v Mostert,95 the appellants (the accused in the court a quo) were charged with theft,
fraud and contravention of s 151(1)(e) and (j), arising out of extraction of water from the
Lomati River in such a way that the amount was not being correctly reflected for the
purposes of the Lomati Irrigation Board’s monitoring of the water use by the appellants.
It appears from the facts that the appellants were using an unauthorised pump (one which
had not been fitted with the requisite water administration monitoring system (WAMS))
and they had interfered with the WAMS on their registered pump so that water was being
extracted without being read by the WAMS.
The Supreme Court of Appeal held that theft was not applicable in the circumstances,
because water, being a res communes, was not capable of ownership and not, therefore,
capable of being stolen. The fact that water was under the trusteeship of the state, in terms
of the 1998 Act, did not change this position. It was also held that the appellants could be
found guilty of fraud, since they had deceived the Irrigation Board by misrepresenting
the true amount of water that they had abstracted, and that this caused actual or potential
prejudice to the board.
The two statutory offences were s 151(1)(e) (‘No person may unlawfully and intention-
ally or negligently tamper or interfere with any waterwork or any seal or measuring
device attached to a waterwork’) and s 151(1)(j) (‘No person may unlawfully and inten-
tionally or negligently commit any act or omission which detrimentally affects or is likely
to affect a water resource’). The first was easily established on the accepted facts. As for
s 151(1)(j), the court held that, since the Lomati River was a ‘water resource’ as defined in
the Act, and the complainant (the Irrigation Board) ‘was charged with the administration
of the water in the river and obliged to supervise and regulate its use, the appellants’
actions would clearly either have detrimentally affected the river or have been likely to
have done so’.96 Consequently, the conviction of the second statutory offence was upheld
as well. This is the first (and only, so far) reported case involving the statutory offences
in question.
The international dimension of South African waters is also recognised in the Act, more
so than in the past. Chapter 10 deals with international water management, primarily with
91
Tribunal decisions (and other information relating to the Tribunal, such as procedural rules) may be found
at http://www.dwa.gov.za/WaterTribunal/.
92
Section 149.
93
Section 151.
94
Section 152.
95
2010 (2) SA 586 (SCA).
96
At para [33].

the establishment of bodies to implement international agreements in respect of the man-

agement and development of water resources. Elsewhere in the Act, international water
obligations are clearly regarded as important: for example, in the prescribed contents of
the national water resource strategy, it is required of the Department to consider meet-
ing the requirements of international rights and obligations.97 This is important because
South Africa shares various watercourses with other countries, either as borders (for
example the Orange and the Limpopo), or because rivers flow through South Africa to
other countries (the Incomati, for example). In addition to South Africa’s membership of
several bilateral or multilateral committees and commissions relating to water matters,98
it is a member of the Southern African Development Community Protocol on Shared
Watercourses of 1995.99
Other matters addressed by the Act include government waterworks (Chapter 11), dam
safety (Chapter 12) and the establishment of national monitoring and information systems,
which is clearly a prerequisite for the effective administration of the Act (Chapter 14).
2.1 Water pollution and release of effluent

This topic is discussed in detail in Chapter 6.100 As indicated above, pollution of water
is made an offence in terms of s 151. In addition, s 19 provides for the prevention and
remediation of the effects of water pollution by imposing a duty on landowners or persons
in control of land on which water pollution threats arise to take all reasonable measures
to prevent any such pollution from occurring, continuing or recurring. Section 20 sets out
detailed responsibilities in the case of emergency incidents likely to cause water pollution.
Although the release of effluent into sewerage systems or watercourses is technically
pollution, it is permitted under specified circumstances.
Note that the fact that water pollution is discussed elsewhere in the book should not be
taken to suggest that water pollution issues are separate from other water management
matters. It is dealt with in another chapter simply for convenience, not because of any
conceptual difference.
3. The Water Services Act 108 of 1997

The National Water Act operates in tandem with the Water Services Act, which has as its
main objects to provide for:
‘(a) the right of access to basic water supply and the right to basic sanitation neces-
sary to secure sufficient water and an environment not harmful to human health
or well-being;
(b) the setting of national standards and norms and standards for tariffs in respect of
water services;
97
Section 6(10)(b)(ii).
98
See the National Water Resource Strategy para 5.6.
99
See Ohera Ramoeli ‘The SADC Protocol on Shared Watercourses: History and current status’ in Anthony
Turton & Roland Henwood (eds) Hydropolitics in the Developing World: A Southern African Perspective
(2002) at 105.
100
At 167ff.

(c) the preparation and adoption of water services development plans by water ser-
vices authorities;
(d) a regulatory framework for water services institutions and water services inter-
mediaries;
(e) the establishment and disestablishment of water boards and water services com-
mittees and their duties and powers;
(f) the monitoring of water services and intervention by the Minister or by the rel-
evant Province;
(g) financial assistance to water services institutions;
(h) the gathering of information in a national information system and the distribution
of that information;
(i) the accountability of water services providers; and
(j) the promotion of effective water resource management and conservation.’101
In order to implement these objectives, the Act provides for the establishment of several
water services institutions — water services authorities, water services providers, water
services intermediaries, water boards and water services committees — and their powers
and responsibilities.
The Act provides in s 3 for everyone to have the right of access to basic water supply
and basic sanitation. This is aimed at giving effect to the right in s 27 of the Constitu-
tion. Every water services institution is required to take reasonable measures to realise
these rights,102 which are subject to the limitations contained in the Act.103 More spe-
cific responsibilities are set out in s 4, which provides for conditions for water services,
requiring the water services provider to provide such services in terms of conditions
set by the provider. Section 9 empowers the Minister to prescribe compulsory national
standards relating to the provision of water services, amongst other related matters. Every
water services institution104 is required to comply with such standards. The Minister has
prescribed standards in a notice entitled ‘Regulations relating to compulsory national
standards and measures to conserve water’.105 Regulation 3 provides that the minimum
standard for basic water supply is:
‘(a) the provision of appropriate education in respect of effective water use; and
(b) a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres
per household per month—
(i) at a minimum flow rate of not less than 10 litres per minute;
(ii) within 200 metres of a household; and
(iii) with an effectiveness such that no consumer is without a supply for more
than seven full days in any year.’
101
Section 2.
102
Section 3(2).
103
Section 3(4).
104
Defined in the Act (s 1) as ‘a water services authority, a water services provider, a water board and a water
services committee’.
105
GN R509 in GG 22355 of 8 June 2001.

4. The National Water Resources Strategy

The Department released the first edition of the National Water Resource Strategy in
September 2004. The strategy is established in terms of s 5 of the Act, and must contain
the items set out in s 6.106 In terms of s 7, the Minister, the Director-General, an organ of
state and a water management institution must give effect to the national water resource
strategy when exercising any power or performing any duty in terms of the Act. The
strategy (NWRS) revolves around the three fundamental objectives of managing South
Africa’s water resources, which are:
●● To achieve equitable access to water, that is, equity of access to water services, to the
use of water resources, and to the benefits from the use of water resources
●● To achieve sustainable use of water by making progressive adjustments to water use
with the objective of striking a balance between water availability and legitimate
water requirements, and by implementing measures to protect water resources
●● To achieve efficient and effective water use for optimum social and economic
benefit.107
According to the Department, the NWRS:
must provide information about the ways in which water resources will be managed and the
institutions to be established. It must also provide quantitative information about the present
106
This section provides that—
(1) The national water resource strategy must, subject to section 5(4)(a)—
(a) set out the strategies, objectives, plans, guidelines and procedures of the Minister and institutional
arrangements relating to the protection, use, development, conservation, management and control of
water resources within the framework of existing relevant government policy in order to achieve—
(i) the purpose of this Act; and
(ii) any compulsory national standards prescribed under section 9(1) of the Water Services Act;
(b) provide for at least—
(i) the requirements of the Reserve and identify, where appropriate, water resources from which
particular requirements must be met;
(ii) international rights and obligations;
(iii) actions to be taken to meet projected future water needs; and
(iv) water use of strategic importance;
(c) establish water management areas and determine their boundaries;
(d) contain estimates of present and future water requirements;
(e) state the total quantity of water available within each water management area;
(f ) state water management area surpluses or deficits;
(g) provide for inter-catchment water transfers between surplus water management areas and deficit
water management areas;
(h) set out principles relating to water conservation and water demand management;
(i) state the objectives in respect of water quality to be achieved through the classification system for
water resources provided for in this Act;
(j) contain objectives for the establishment of institutions to undertake water resource management;
(k) determine the inter-relationship between institutions involved in water resource management; and
(l) promote the management of catchments within a water management area in a holistic and integrated
manner.
(2) In determining a water management area in terms of subsection (1)(c), the Minister must take into
account—
(a) watercourse catchment boundaries;
(b) social and economic development patterns;
(c) efficiency considerations; and
(d) communal interests within the area in question.
107
NWRS at 7.

and future availability of and requirements for water in each of 19 water management areas, and
propose interventions by which these may be reconciled. The NWRS must also quantify the
proportion of available water in each water management area that falls under the direct control
of the Minister in terms of her or his national responsibilities.108
In the introduction to the NWRS, it is also stated that the strategy is based on the concept
of integrated water resources management (IWRM), which may be defined as ‘a process
which promotes the co-ordinated development and management of water, land and related
resources in order to maximise the resultant economic and social welfare in an equitable
manner without compromising the sustainability of vital ecosystems’.109
Chapter 2 deals with South Africa’s water situation and strategies to balance supply
and demand. This Chapter contains data relating to current yield and use of water both for
the country as a whole and for the individual water management areas,110 and considers
likely future scenarios and how the balance between supply and demand will be achieved
in these scenarios, taking into account influencing factors such as climate change. It
is interesting to note that, while supply exceeds demand for the country as a whole, in
more than half the water management areas, there are deficits.111 This situation is exacer-
bated by the fact that the current figures do not take into account the requirements of the
Reserve (the water required for basic human needs and ecological requirements), which
will be implemented in a phased manner.
The next Chapter, Chapter 3, deals with strategies for water resources management,
and is subdivided into nine parts:
●● Protection of Water Resources;
●● Water Use;
●● Water Conservation (WC) and Water Demand Management (WDM);
●● Water Pricing and Financial Assistance;
●● Water Management Institutions;
●● Monitoring and Information Systems;
●● Disaster Management;
●● Anticipated Programme of Implementation Activities;
●● Financial Implications.
As far as protection of water resources is concerned, the document indicates that a com-
bination of resource-directed measures (focusing on water quality) and resource-directed
controls (defining limits and constraints on water use) is used. To this end, the Act envis-
ages a national water resources classification system, which will classify water resources
according to their degree of degradation. This will tie in closely with the determination
of the Reserve and resource quality objectives. The role of groundwater resources and
wetlands is also considered.
Part 2 of Chapter 3 deals with Water Use. This part considers in detail the require-
ment of authorisation (licensing) of water use, examining the procedural and other
108
Ibid at 8.
109
Ibid at 10.
110
This information is set out in detail for each water area in Appendix D to the NWRS.
111
Ibid at 35.

requirements for the proper functioning of the system. Specific attention is given to the
consideration of water quality in the authorisation process.
Water conservation and water demand management is the subject of Part 3. The three
basic principles of water conservation and water demand management are:
●● Water institutions should strive to supply water efficiently and effectively, minimise
water losses and promote WC/WDM among their consumers;
●● Users should not waste water and should strive to use it efficiently;
●● WC/WDM should be an integral part of the planning processes for water resources
management, water supply and the provision of water services.
The application of these principles in different sectors (such as industry and agriculture)
is considered and the important threat to water posed by alien vegetation is considered
in this part.
Part 4 deals with water pricing and financial assistance. Pricing strategies for various
types of water use (as defined in the Act) are being developed, and the document consid-
ers the important issue of water use charges. The document envisages charges being
specific to four end-user sectors: municipal (water services authorities); industry, mining
and energy; agriculture; and stream flow reduction activities. The document considers in
detail the setting of charges and the factors to be input into this process, and goes on to
consider the issue of financial assistance in the form of subsidies.
Water Management Institutions (Part 5) are discussed next. The various institutions,
ranging from the Department, through catchment management agencies, to the Water
Tribunal (amongst other entities) and their roles in water management are examined,
followed by consideration of the relationship between these institutions. Part 6 addresses
Monitoring and Information, which is fundamental to the effective management of the
country’s water resources. This part details the monitoring and information systems
that are in place or planned. Part 7 deals with disaster management, and considers the
Department’s role in disaster management, particularly in regard to dam safety, floods
and droughts, and water pollution.
Policies or strategies often tend to be somewhat abstract, but this document provides
some concrete timeframes for the implementation of various requirements under the Act
in Part 8, headed ‘Anticipated programme of implementation activities’. These time-
frames are supposed to be ‘indicative’ rather than rigid. The Part deals with activities
such as compulsory licensing, establishment of catchment management agencies, inter-
national water-sharing arrangements and development of infrastructure. The financial
implications of this are considered in Part 9. The NWRS anticipates that compulsory
licensing will commence in some water management areas immediately (ie from 2004)
and in others it will commence in about 2009. The entire process will be spread over a
period of about 21 years. The high-priority licensing matters will be completed by about
2019.112
The frames for the establishment of catchment management agencies (CMAs) are also
estimated, with some of them having been established by the end of 2006, whereas oth-
ers were supposed to be in place by 2010. It is anticipated that all CMAs will be fully
112
NWRS at 119 (Figure 3.8.1).

functional by 2016. Eight of the nineteen CMAs have been established,113 and, at the time
of writing, one proposal for establishment of a CMA has been gazetted..114
Chapter 4 of the strategy looks at ‘complementary strategies’, focusing on building
capacity and expertise among practitioners in the water sector; educating and creating
awareness among stakeholders; and water research. Chapter 5 then deals with national
planning and co-ordination and international co-operation in water management, rec-
ognising that the Act has important interrelationships with other legislation (such as the
Water Services Act and NEMA) and that co-operative relationships with other institu-
tions, local and international, are required for effective implementation of the strategy.
There are several appendices to the strategy: Appendix A contains the fundamental
principles and objectives for South African water law; Appendices B and C contain
relevant extracts from the Act; and Appendix D contains substantial information relat-
ing to water management areas (WMAs) and how this ties in with strategic perspec-
tives. This Appendix is divided into sections dealing with the different WMAs, and
contains information on issues such as natural mean annual runoff and ecological
Reserve; available yield in the year 2000; water requirements in the year 2000; rec-
onciliation of water requirements and availability for the years 2000 and 2025 (two
projected scenarios). Appendix E sets out the water management areas; Appendix F
sets out the public participation process and, finally, Appendix G is the document list
(bibliography).
The National Water Resource Strategy is a comprehensive document which appears
to cover all the requisite bases for effective management of the water resources in South
Africa. The strategy is a prerequisite for the full implementation of the National Water
Act, and illustrates why full implementation of the Act cannot be expected for several
years yet. The fact that the NWRS appeared only in 2004, six years after promulgation
of the Act, is not due to tardiness, but owing to the fact that huge amounts of data, relat-
ing especially to current water quality, quantity, demand and current usage, had to be
gathered, collated and analysed. This data then had to be considered in the context of pro-
jected future demand. Given these dynamics, it is somewhat surprising that the NWRS
appeared this early. It should be noted, however, that some of the determinations (such
as those relating to the Reserve) are preliminary determinations which may be changed
in the future. It should be borne in mind that the NWRS is a dynamic document that can
be changed depending on changes in circumstances and, in any event, it is statutorily
required that it be periodically reviewed.115
The NWRS reveals many issues that require considerable attention before the Act can
be said to be fully implemented. Some of the bigger concerns, which are not necessarily
expressly recognised or discussed in the NWRS, are considered in the next section of
this chapter.
113
The Inkomati (26 March 2004); Mvoti to Mzimkulu (20 May 2005); Breede to Overberg (13 July 2005);
Crocodile (West) to Marico (30 September 2005); Thukela; Usuthu to Mhlatuze; Gouritz; and Olifants to
Doorn (all 15 September 2006).
114
The Berg CMA (GN 1115 in GG 30500 of 22 November 2007).
115
Every five years: s 5(4)(b) of the National Water Act.

5. Key implementation challenges

5.1 Over-bureaucratisation of the Act
Now that the state has reserved for itself the role of public trustee of the country’s water
resources, and the Act envisages a licensing system for allocations of water use, there is
clearly a significant administrative burden that will have to be met by the Department
of Water Affairs. In this context, Bronstein has argued that the National Water Act is an
example of ‘unnecessarily interventionist legislation’ in that it provides for a complex
licensing system for water allocation, where such allocation would be more efficiently left
to the market.116 The problem with an over-bureaucratised system such as the National
Water Act is that there is likely to be inadequate capacity to carry out the licensing system
effectively, which is conducive to corruption and other maladministration. The Act pro-
vides guidelines for licensing that provide ‘no real guidance’117 and ‘ensures that admin-
istrators making licensing decisions will operate squarely in the realm of politics’.118
Bronstein clearly favours allocation by market forces,119 but she does concede that
discretionary licensing can be acceptable ‘only [where it is] offset by clearly defined ben-
efits’.120 She states that discretionary licensing could have a role where the Department:
may institute new licensing systems in a number of catchments that experience water stress. In
targeted contexts such as these, licensing is much easier to justify. Targeted schemes cost less
than untargeted schemes and their benefits can be considerable.121
Although much of Bronstein’s argument is compelling — there is a problem with over-

ambitious legislative intervention in the presence of administrative incapacity — in my
opinion she misreads the aims of the National Water Act and the Department’s objectives
in the context of licensing water use. Given that the licensing process will impose a
serious burden on water managers, it seems reasonably certain that the Act’s recognition
of existing lawful use and general authorisations will be substantially utilised (in a way
which requires little administrative intervention) and that licensing will only be utilised
in those areas identified as being under water stress or where there are other compelling
features requiring such administrative intervention.122 Any costs of the licensing process
under such circumstances would surely be outweighed by the benefits. This would accord
with Bronstein’s conception of targeted interventions mentioned above.
Although Bronstein and I may disagree as to the extent of the National Water Act’s
overreach, her concerns are a cautionary note for South African water managers that
should be heeded. The temptation to use the powers in the National Water Act where they
are not necessary should be resisted for all of the reasons she raises.
116
Victoria Bronstein ‘Drowning in the hole of the doughnut: Regulatory overbreadth, discretionary licens-
ing and the rule of law’ (2002) 119 South African Law Journal 469.
117
Ibid at 475.
118
Ibid at 476.
119
Ibid at 473, 475–6 and 483.
120
Ibid at 483.
121
Ibid at 481.
122
See s 43 of the Act.

5.2 Water rights, the constitutional property clause and compensation for
expropriation
An issue of concern for existing water-rights holders is the impact that the new Act may
have on their rights: in particular, if deprivation of water rights will be lawful and, if
so, whether those deprived of water rights will be entitled to compensation. The issue
of expropriation and deprivation of property rights in the context of the Constitutional
property clause was discussed in Chapter 2.123
The National Water Act recognises the continuation of existing lawful water use, but
also provides that those persons continuing such water use may be required to license
their use under the Act at some future time.124 This raises the question of whether the
compulsory licensing process will result in a deprivation of water rights and whether
such deprivation will have to be compensated. The answer to this question will be deter-
mined by consideration of the nature of the existing water rights.
A water right in South African common law is an incorporeal, since the flow of water
itself cannot be owned or possessed,125 and it amounts to ‘a right to use water with a guar-
antee of priority (in amount, quality and time) but bounded by the concept of beneficial
use and subject to regulation by the State in the public interest’.126 The core of this right
is the right of access to water.127
The impact of the National Water Act on existing water rights is likely to be less sub-
stantial than many people, particularly riparian owners, fear. The requirement of com-
pulsory licensing, which would appear to be contemplated primarily in areas suffering
from water stress and not across the board (as suggested above), could lead to water users’
current allocations (being allocations extracted under common law and not subject to
an administrative allocation process) being reduced or, perhaps in some cases, removed
altogether. In the light of these possibilities, and in the context of s 25, two questions need
to be considered. The first is whether such reduction or removal of an existing allocation
is an expropriation of water rights (in which case it would attract compensation) and, if
not, the second question is whether it is a deprivation and what the consequences of such
deprivation would be.
The Constitutional Court has, in the case of Harksen v Lane NO,128 held that expropria-
tion consists of a transfer of property to the State.129 The measures adopted by the State
under the National Water Act, which may have the effect of reducing or extinguishing
existing water allocations, does not involve a transfer of water rights to the State and
thus, according to the narrow definition of expropriation set out in Harksen, water rights
would not be expropriated. Even were this approach to be widened, it is arguable that
there are other compelling reasons to regard such measures as not entailing expropria-
123
At 28–9.
124
Section 43.
125
Heinz Klug ‘Water law reform under the new Constitution’ (1997) 1 Human Rights and Constitutional
Law Journal of Southern Africa 5 at 6. See also Fred Soltau ‘Environmental justice, water rights and
property’ (1999) Acta Juridica 229 at 239.
126
Klug ibid.
127
Ibid at 7.
128
1998 (1) SA 300 (CC) at paras [29]–[39].
129
See above, 28.

tion. As Soltau argues, these measures ‘ought not to be understood as an expropriation

for which compensation is payable, since that would collapse the legitimate right of the
state to regulate property into the altogether different duty to compensate for the taking
of individual property rights’.130 In any event, in many cases involving the reduction of
existing water allocations, Klug suggests, the situation would be one where ‘[o]nce it is
determined that a particular water-rights holder is only making beneficial use of a certain
quantity of water, at a certain time and in a particular place, the remaining quantities of
water previously associated with that particular right are not subject to either expropria-
tion or deprivation but are merely disassociated from the pre-existing right’.131 In these
cases, therefore, it could not be said that a person was being deprived of a property right.
In other cases, however, the amount by which a particular user’s allocation could be
reduced would amount to a deprivation of an existing water right and consequently the
Constitutional provision relating to deprivation will come into play. Section 25 provides
that the deprivation must be in terms of law of general application and must not be arbi-
trary. Would the deprivation of water rights under the National Water Act be arbitrary? In
the light of the test for arbitrariness set down by the Constitutional Court in First National
Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service,132 given the
duty of the Department of Water Affairs to manage water in the public interest, to provide
sufficient water of acceptable quality to citizens (which is required by the Constitution),
and to conserve the aquatic environment (which is also a Constitutional requirement), the
deprivation of water rights in terms of the National Water Act is unlikely to be held to be
arbitrary.
As far as compensation is concerned, it has been argued above that the reduction or
removal of existing water rights does not amount to expropriation, and consequently there
is no Constitutional requirement to pay compensation. The National Water Act, however,
does provide for compensation to be paid to persons deprived of water rights in certain
circumstances. Section 22(6) provides that any person who has applied for a licence in
terms of s 43 in respect of an existing lawful water use, and whose application has been
refused or who has been granted a licence for a lesser use than the existing lawful water
use, resulting in severe prejudice to the economic viability of an undertaking in respect
of which the water was beneficially used, may claim compensation for any financial loss
suffered in consequence. This issue will be decided by the Water Tribunal,133 which will
determine the amount payable—
‘(a) in accordance with section 25(3) of the Constitution; and
(b) by disregarding any reduction in the existing lawful water use made in order to—
(i) provide for the Reserve;
(ii) rectify an over-allocation of water use from the resource in question; or
(iii) rectify an unfair or disproportionate water use.’134
130
Soltau (n 125) at 246.
131
Klug (n 125) at 7.
132
2002 (4) SA 768 (CC) at para 100. See details above, 29.
133
Section 22(8).
134
Section 22(7).

In summary, then, it would appear that the regulation of water use by means of the instru-
ments provided in the National Water Act is unlikely to infringe the right to property in
s 25 of the Constitution. In many cases where existing water allocations are reduced,
users will not suffer ‘severe prejudice to the economic viability of [their] undertaking’
and payment of compensation will not be necessary. It is, however, fair and equitable that
those who do suffer disproportionately as a result of the implementation of new water
policy do not have to bear the cost of doing so, and they will be entitled to compensation
under the Act. There will almost certainly be interesting legal developments emerging
later, when the compulsory licensing process under the Act begins in earnest and the
Water Tribunal and the Courts are seized with issues relating to water rights and their
deprivation, but it is unlikely that the general legal framework which emerges will be
much different from that which has been described here.
5.3 The right of access to water and a basic water supply135

The right of access to water by all South Africans has been highlighted throughout the
water policy development process and is entrenched in the legislation. The backlog of
people without access is being addressed by means of provision of access to water, either
by direct provision of water to houses or providing access to water within a reason-
able distance of people’s dwellings. The major policy initiative of the government in this
respect is the Free Basic Water Programme, announced in 2001. The ultimate objective
of the programme is to provide everyone with access to water. As at 30 April 2011, the
Department is providing water to over 86 percent of more than 13 million households in
the country.136
Regulation 3 of the June 2001 regulations under the Water Services Act137 provides
in essence that the minimum standard for basic water supply is a minimum quantity of
potable water of 25 litres per person per day or 6 kilolitres per household per month. This
amount corresponds with the amount upon which the government’s Free Basic Water
policy is based. But is it enough to meet the right of access to water in s 27? It has been
argued that:
For the urban poor who are used to relatively high levels of water usage, 6 kilolitres of free water
for each household per month will not be adequate. For a household of 8 people, six kilolitres
of water amounts to two flushes of a toilet per person per day and will therefore be completely
inadequate.138
This viewpoint is flawed because a basic water supply should not be determined by refer-
ence to past habits but should be ‘scientifically’ determined. People, whether urban or
rural, must learn to cut their cloth according to their means. But even if it is not necessary
for the toilet to be flushed sixteen times per day, is 25 litres per day sufficient?
135
This section contains elements of a previous work of the author: ‘Not a drop to drink: Disconnection of
water services for non-payment and the right of access to water’ (2004) 20 SAJHR 119.
136
Department of Water Affair and Forestry’s Free Basic Water page: http://www.dwaf.gov.za/dir_ws/fbw/
(accessed 9 May 2011).
137
GN R509 in GG 22355 of 8 June 2001.
138
Jaap de Visser, Edward Cottle & Johann Mettler ‘The free basic water supply policy: How effective is it
in realising the right?’ (July 2002) ESR Review available at http://www.communitylawcentre.org.za/ser/
esr2002/2002july _water.php.

Various international bodies have made recommendations for basic drinking water
and sanitation requirements that tend to range between 20 and 40 litres per person per
day.139 Drawing on these recommendations, Gleick140 considers the question of defining
a human right to water. He recommends a basic water requirement for human domestic
needs of 50 litres per day, as set out in the following table:141
Purpose Recommended commitment (litres per person per day)

Drinking water a
5
Sanitation services 20
Bathing 15
Food preparationb 10
a This is a true minimum to sustain life in moderate climatic conditions and average
activity levels.
b Excluding water required to grow food. A rough estimate of the water required to
grow the daily food needs of an individual is 2700 litres.
This suggests that the government’s determination of a basic water supply of 25 litres per
person per day may not be sufficient to meet the right of access to a basic water supply
as envisaged by s 27 of the Constitution. While people who are directly supplied with
water do have the option of paying for water in excess of the free basic allocation, where
there are limitations (such as in the case of reduction of supply to the minimum following
non-payment for previous water allocations in excess of the minimum), a person confined
to the minimum may claim that, despite having that water available, his or her right of
access to adequate water is nevertheless being infringed. Given that s 27 of the Constitu-
tion provides for the right of access to sufficient food and water, a person having to grow
his or her own food would need considerably more than the minimum provided for in the
regulations, according to the figure suggested by Gleick.
The courts have recently been faced with this issue in the Mazibuko case.142 The case
involved the installation of pre-paid water meters in the Phiri township (part of Soweto),
139
The World Health Organisation regards 20 litres per capita per day as not enough to ensure hygiene,
whereas for 50 litres, it states ‘hygiene should not be compromised’: The Right to Water available at
http://www.who.int/water_sanitation_health/en/rtw2.pdf (accessed 17 September 2006). The US Agency
for International Development states in its Policy Paper Domestic Water and Sanitation (1982) at http://
www.usaid.gov/policy/ads/200/water/water.doc (accessed 17 September 2006) that ‘[t]he availability of
a minimum of 20–40 liters of relatively safe water per person per day is essential to achieve sustained
health improvements in developing countries’. The World Bank defines ‘adequate amount of water’ as an
‘amount of water needed to satisfy metabolic, hygienic, and domestic requirements, that is, 20 liters of
safe water per person per day’ (Water and Sanitation: Technical Notes at http://poverty.worldbank.org/
files/4237_annex_s.pdf (accessed 12 August 2003)). One of the targets of Agenda 21 is that states endeav-
our ‘by the year 2000, to have ensured that all urban residents have access to at least 40 litres per capita
per day of safe water and that 75 per cent of the urban population are provided with on-site or community
facilities for sanitation’ (Clause 18.58(a)).
140
Peter H Gleick ‘The human right to water’ (1998) 1 Water Policy 487. See also John Scanlon, Angela
Cassar and Noémi Nemes ‘Water as a human right?’ in Benjamin (n 58) at 145.
141
Gleick ibid at 496.
142
Mazibuko v City of Johannesburg Unreported Case No. 06/13865 (W); City of Johannesburg v Mazibuko
2009 (3) SA 592 (SCA); Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC).

where most of the residents were amongst the poorest of the poor, and many were also
suffering from HIV/Aids. There were several issues involved in the judgment, most of
which do not require discussion for present purposes, but among the arguments on behalf
of the original applicants (the residents of Phiri) was that the 25 lpcd amount provided
in Regulation 3 was insufficient to meet the requirement of s 27 of the Constitution. The
Constitutional Court rejected the contention, holding that setting a specific amount was
not the job of the courts, but of the executive. In addition, the court held that the installa-
tion of prepaid meters was valid, despite the fact that inability to pay the ‘top-up’ amount
would mean that many people would spend a considerable part of every month with no
(not limited, but absolutely no) water. There are many reasons why this is a deeply flawed
judgment but space does not permit detailed discussion here.
One of the main concerns facing many water services institutions today is how to
provide for the free basic water allocation. The provision of water is the responsibility
of local government and certain problems are being faced at this level. The provision of
water services requires money, and while water services providers can rely for part of
this financing on a combination of the equitable share,143 other subsidies from national
government and transfers from other municipal accounts, the rest of the financing is
intended to come from cross-subsidisation through user tariffs — users who use in
excess of the free basic water supply pay a premium for their excess usage in order to
subsidise the free supply for other users. In certain areas, however, municipalities have
faced shortfalls when projected usage by consumers who historically used considerably
more than the free basic water allocation levels dropped considerably in the light of the
premium tariff now being charged for the ‘excess’ usage.144 In other areas, municipalities
are having difficulties, especially in times of water shortage, in finding enough water to
meet their responsibilities in this regard. Moreover, some of the water services institu-
tions have been privatised and this raises some concerns about addressing human rights
considerations.145
Overall, however, the government’s commitment to providing access to water and
sanitation to all people cannot be faulted. If necessary, and if local government faces
challenges in meeting its responsibilities in this regard, one would hope that the national
department will do what it can to facilitate the process.
5.4 Water quality concerns

According to the Department of Water Affairs and Forestry,
Major sources of pollution of surface waters are agricultural drainage and wash-off (irrigation
return flows, fertilisers, pesticides and runoff from feedlots), urban wash-off and effluent return
flows (bacteriological contamination, salts and nutrients), industries (chemical substances),
mining (acids and salts) and areas with insufficient sanitation services (microbial contamina-
143
The ‘equitable share’ of national revenue to municipalities, required by s 214 of the Constitution and the
Division of Revenue Act 5 of 2002, covers operating transfers to municipalities to be used primarily for the
provision of basic level of services to the indigent. The proportion of nationally raised revenue which goes
to local government should be equitable, based on the functions it has to fulfil and the amount of revenue
it is able to generate on its own.
144
This information is derived by the author from reliable anecdotal evidence from several different areas.
145
Danwood Mzikenge Chirwa ‘Privatisation of water in Southern Africa: A human rights perspective’
(2004) 4 African Human Rights Law Journal 218.

tion). Pollution of groundwater results from mining activities, leachate from landfills, human
settlements and intrusion of sea water.146
In 2004, there were three main areas of concern as regards water quality. The first and
most serious is salinisation,147 naturally high in many of our rivers but increased by
human activities, which results in water becoming unfit for irrigation. Treatment is very
expensive. Eutrophication148 is the second worry, leading to growth of water plants and
algae, which affects other life in the water. Contributing factors are animal and human
waste (often in the form of sewage effluent), fertilisers, and stormwater run-off, which in
many cases enter water systems from so-called non-point sources, making the problem
difficult to control.149 Pollution by other substances such as toxins and organic waste is
also problematic.150
Water abstraction and impoundments have had profound effects on the flow of many of
our rivers, converting several perennial rivers to seasonal ones.151 Of particular concern
are several rivers that run through the Kruger National Park. Clearly a reduction in the
flow of rivers is detrimental both to the environment and to humans who use water from
the rivers concerned.
The fourth major problem is the proliferation of alien species,152 both plants (many of
which benefit from eutrophic conditions) and animals, including a number of fish species
that have a negative impact on indigenous species. The department’s Working for Water
programme is aimed at clearing catchments of alien plants, which often require much
more water than the indigenous vegetation they displace.
More recently, two further (but not unrelated) major water pollution problems (it may
even be appropriate to label them crises) have emerged. In recent years, there have been
numerous reports of water being polluted by sewage from waste water systems that are
not functioning correctly.153 In 2010, the Department of Water Affairs released Green
Drop Report 2009, which reported on South African Waste Water Quality Management
Performance. The results were alarming. Of 852 municipal waste water systems, only
449 (53 percent) were assessed. The reasons for non-assessment of the other 47 percent,
according to the Report, were a combination of three factors: municipalities did not
adhere to the call to be assessed, and/or municipal officials were not sufficiently confident
in their levels of competence to be subject to assessment, and/or municipalities were not
managing waste water services according to expected requirements and were therefore
146
National Water Resource Strategy (n 2) at 24.
147
JA Day ‘Rivers and wetlands’ in HA Strydom & ND King (eds) Fuggle & Rabie’s Environmental Manage-
ment in South Africa 2 ed (2009) 842 at 853.
148
The process of nutrient enrichment and an associated increase in primary production (ibid at 853).
149
KA Wiseman & MR Sowman ‘Inadequacies in the legal system and administrative framework affecting
river-system management in South Africa: A case study of the Eerste–Kuils river system in the Western
Cape’ (1991) 54 THRHR 236 at 245.
150
Day (n 147) at 853.
151
Ibid at 850.
152
Ibid at 854–5.
153
The discussion of the sewage contamination and the Green Drop Report (n 154 infra) is drawn from
Michael Kidd ‘Setting a bad example: The state’s compliance with environmental law in South Africa’ in
Michael Kidd & Shannon Hoctor Stella Iuris: Celebrating 100 years of teaching law in Pietermaritzburg
(2010) 79 at 89–90.

not in possession of the management information required for assessment.154 This infor-
mation is alarming in itself, since it suggests that few, if any, of the municipalities not
assessed would have made the grade. Of the municipalities assessed, 203 of the 449 (45
percent) scored better than 50 percent in the assessment. According to the Report, this
indicates that the ‘sector is not in complete disrepair’,155 which is probably cold comfort
to most people.
The implications of this widespread failure of management are of great concern. River
ecosystems are being poisoned, there is potential and actual harm to agriculture, and
people who have to rely on river water for drinking are being put at risk.156 This will be
elaborated upon below.
If one drills down into the assessment data, and examines the ratings for waste water
compliance with licence conditions/general authorisations or special limits, the results
give even more cause for concern. This assessment examines whether the waste water
that was being released into water resources from the treatment works was complying
with the relevant legal standards. Only 65 of 449 (14.5 percent) were in full compliance.
Ignoring non-compliance that appears (on my understanding of the assessment criteria)
to be formal rather than substantive, there were still 299 treatment works that were not in
substantive compliance with the legal requirements (66.5 percent).157
The result of this widespread failure to treat wastewater (primarily domestic) properly
is that water resources are being filled with harmful pathogens (there have been sporadic
outbreaks of cholera in certain areas recently) and nutrients, which, of course, leads to
eutrophication, which has been described as ‘probably the single greatest threat to water
resources’ in the country.158 Approximately 35 percent of impounded water resources in
South Africa are seriously impaired (eutrophic to hypertrophic), while a further 20 to 30
percent are ‘incipiently problematical’.159 All of the major impoundments in Gauteng, ‘the
economic heartland of the country’, are ‘grossly impaired’.160 In order to combat eutrophi-
cation, nutrient loads should be reduced by between 25 and 85 percent, ‘with reductions
in excess of 70% typically required in order to meet desired management targets’.161
The other major pollution problem — one that is generating alarm — is acid mine
drainage. This is primarily affecting the Witwatersrand (the main goldfields of the coun-
try) in Gauteng, the most populous and economically-significant province and home of
Johannesburg and Pretoria. Of acid mine drainage (AMD) it has been observed:
154
Department of Water Affairs Green Drop Report 2009 (2010) at 4.
155
Ibid.
156
Jocelyn Newmarch ‘Sewage treatment “unacceptable”’ 28 April 2010 Business Day.
157
This number includes those that are assessed as “E”, which is the failure to comply with percentage com-
pliance per determinand (measured against overall compliance percentage) and those rated “G” — those
that did not comply with any of the sub-criteria (both formal and substantive) or failed to submit sufficient
data for assessment purposes.
158
WR Harding ‘Eutrophication of impounded water resources in South Africa: Descent into crisis’ Unpub-
lished paper presented at the WISA Conference, Durban, 21 April 2010 at 6.
159
Ibid at 2.
160
Ibid.
161
Ibid at 3, citing JN Rossouw, WR Harding & OS Fatoki A guide to catchment-scale eutrophication assess-
ments for rivers, reservoirs and lacustrine wetlands (2008).

Potentially the biggest water quality issue in South Africa, acid mine drainage occurs when
water collecting in disused mines dissolves minerals in ore seams, and becomes highly acidic
as a result. The contaminated water drains back into wetlands and rivers, and can also dissolve
limestone, leading to sinkholes.162
Although AMD has been around as long as mining has, the problematic extent of the
situation became particularly evident in 2002, when AMD decanted (ie came to the
surface) in the Krugerdorp-Randfontein area of the so-called West Rand, not far west
of Johannesburg.163 The initial decant was discharged from the Tweelopiespruit (part of
the Crocodile River System and Limpopo catchment) and into the Robinson Lake. The
initial decant had a pH of 2.6. Due to further AMD contamination, the Robinson Lake in
May 2007 had a pH of 2.2 and the Tweelopiespruit one month later a pH of 2.6.164 Robin-
son Lake has a uranium concentration of 16 mg/l, 220 times safe levels.165 According to
Hobbs and Cobbing, in 2005 the decant rate increased to between 18 and 36 Ml per day.166
The problem is not confined to the West Rand. In August 2010, experts told the Par-
liamentary portfolio committee on water affairs that acid water is currently about 600m
below the city’s surface, but is rising at a rate of between 0.6 and 0.9m per day.167 There
is also a problem in the Eastern Basin, beneath the town of Nigel (about 50 km south-east
of Johannesburg), and the Loskop Dam near Middelburg in Mpumalanga is also being
contaminated.168
Addressing South Africa’s water pollution problems will not be easy. Many of the
problems underlying the failure to treat municipal sewage are infrastrucutural, often
inherited from the pre–1994 epoch. The solutions to this problem are probably as much
political as legal, but it is important that water quality standards be enforced.
As for acid mine drainage, this is a legacy of mismanaged mine closures and reha-
bilitation and it now looks as if it is a problem that will require a partnership between
government and business to resolve. At the time of writing, the Cabinet is considering a
report on addressing the problem but the public is still in the dark as to what this is likely
to entail.
In summary, water quality issues are inextricably linked with water use, since not only
must there be enough water (quantity) to meet the needs of both humans and the environ-
ment, but the quality must be such that it can sustain those needs.
162
Centre for Development and Enterprise (CDE) Water: A Looming Crisis? (2010) at 9.
163
Phil Hobbs & Jude Cobbing ‘The hydrogeology of the Krugersdorp Game Reserve area and the implica-
tions for the management of mine water decant’ CSIR/NRE/WR/ER/2007/0097/C at 1; ES van Eeden, M
Liefferink, JF Durand ‘Legal issues concerning mine closure and social responsibility on the West Rand’
(2009) 5 The Journal for Transdisciplinary Research in Southern Africa 51 at 54.
164
Van Eeden et al (n 163) at 55.
165
Dan Kemp ‘Acid mine water: The damage done’ (4 October 2010) Times Live at http://www.timeslive.
co.za/iLIVE/article688413.ece/Acid-mine-water--The-damage-done (accessed 14 December 2010).
166
Hobbs & Cobbing (n 163) at 1.
167
Anon ‘Johannesburg on acidic water time bomb’ (21 July 2010) Mail & Guardian at http://www.mg.co.za/
article/2010-07–21-johannesburg-on-acidic-water-time-bomb (accessed 14 December 2010).
168
JD Wells et al ‘Terrestrial Minerals’ in Strydom & King (n 147) 513 at 537.

6. Conclusion
After years of inequitable access to water resources by the majority of the country, and
inappropriate legal approaches to managing such resources, the arrival of democracy
in 1994 heralded a new era. The National Water Act is a very ambitious Act aimed at
achieving effective, sustainable management of South Africa’s water resources in order
to ensure not only that all people have sufficient access to a scarce resource but also
that there is enough water available to meet environmental needs. The Act relies on a
considerable administrative endeavour which is not capable of being, nor intended to
be, implemented immediately. There are several challenges facing the implementation
of the new water law regime, the most prominent of which have been discussed here, but
the mechanisms and continuing policy and strategic development have been instituted
to allow for achievement of the Act’s objectives. It is clear, both from the department’s
own policy and strategy releases and from the experience of implementation of the water
legislation thus far, that we will be able to appreciate the full benefits of the new legisla-
tion only several years into the future.

5
Conservation of Biodiversity
‘Biodiversity’ can be defined as ‘the variability among living organisms from all sources
including, terrestrial, marine and other aquatic ecosystems and the ecological complexes
of which they are part and also includes diversity within species, between species, and
of ecosystems’.1 Biodiversity is an abstract concept, thus the conservation of biodiver-
sity relies upon the conservation of the components of biodiversity (organisms such as
animals and plants and the ecosystems within which they live). Why conserve biodiver-
sity? Not only do biodiversity and its components have intrinsic value; they also have
ecological, genetic, social, economic, scientific, educational, cultural, recreational and
aesthetic value. Probably most importantly, biodiversity requires conservation because
of its critical importance for evolution and for maintaining life-sustaining systems of
the biosphere.2 Biodiversity provides the basis of ecosystems which provide so-called
ecosystem services on which humankind depends for food, fresh water, and protection
from natural disasters, amongst other things.3
In May 2002 at the sixth Conference of the Parties to the Convention on Biological
Diversity, the parties agreed upon the 2010 Biodiversity Target, which aimed to achieve,
by 2010, ‘a significant reduction of the current rate of biodiversity loss at the global,
regional and national level as a contribution to poverty alleviation and to the benefit of
all life on earth’. This target is also part of the Millennium Development Goals, being a
subsection of Goal 7 aimed at ensuring environmental sustainability. It is clear, however,
that this target has not been met. According to the 2010 Global Biodiversity Outlook,4
there are ‘multiple indications of continuing decline in biodiversity in all three of its main
components — genes, species and ecosystems’,5 which include:
●● Species at risk of extinction are, on average, moving closer to extinction;
●● The abundance of vertebrate species fell by almost one third on average between 1970
and 2006, and continues to fall;
●● In most parts of the world, natural habitats are in decline in extent and integrity;
●● There is extensive fragmentation and degradation of forests, rivers and other ecosys-
tems, leading to loss of biodiversity and ecosystem services;
1
National Environmental Management: Biodiversity Act 10 of 2004. This is also the definition in the Con-
vention on Biological Diversity.
2
See Preamble to the Convention on Biological Diversity.
3
Ecosystem services are ‘the benefits people obtain from ecosystems. These include provisioning services
such as food, water, timber, and fiber; regulating services such as the regulation of climate, floods, disease,
wastes, and water quality; cultural services such as recreation, aesthetic enjoyment, and spiritual fulfill-
ment; and supporting services such as soil formation, photosynthesis, and nutrient cycling’: Millennium
Ecosystem Assessment Ecosystems and Human Well-being: Biodiversity Synthesis (2005) 1–2.
4
Secretariat of the Convention on Biological Diversity Global Biodiversity Outlook (2010). See also Stuart
HM Butchart et al ‘Global Biodiversity: Indicators of recent declines’ (2010) 328 Science 1164.
5
Global Biodiversity Outlook at 9.
97

●● There is continued decline in crop and livestock genetic diversity;

●● Habitat change, overexploitation, pollution, invasive alien species and climate change
are the five main pressures directly driving biodiversity loss, and these are all either
constant or increasing in intensity; and
●● Humanity’s ecological footprint exceeds the biological capacity of Earth by a wider
margin than in 2002, when the 2010 target was agreed.
South Africa is a country that is rich in biodiversity. It ranks as the third most biologi-
cally diverse country in the world,6 probably the most important reason for this being the
large number of plant species found in the country: about 18 000 vascular plant species
occur within South Africa,7 of which 80% occur nowhere else. Of six plant kingdoms in
the world, one occurs within the borders of South Africa — the only country that has this
distinction. The Cape Floral Kingdom, as it is known, is the world’s ‘hottest hotspot’ of
global conservation concern, where high levels of species richness, endemism and threat
coincide.8 Species other than plants are also well represented in the country, both terres-
trial and marine.9 Given these features, the conservation of biological diversity in South
Africa is of crucial concern, not just for this country but also globally.
South Africa has enacted several national Acts in the new constitutional era deal-
ing with conservation of biodiversity, either generally or in respect of specific subsets
of biodiversity such as forests and marine resources. The overarching legislation is the
National Environmental Management: Biodiversity Act,10 which is aimed at, inter alia,
implementing the Convention on Biological Diversity in South Africa.
According to the Constitution, ‘nature conservation, excluding national parks, national
botanical gardens and marine resources’ is a functional area of concurrent national and
provincial legislative competence.11 Until 2004, there was no general national biodiver-
sity conservation legislation (although there was national legislation dealing with specific
aspects, such as forests and national parks). ‘Nature conservation’ was regulated pri-
marily at provincial level, and much of this provincial legislation is still in effect. The
common law, in so far as it relates to the acquisition of ownership of wild animals, is also
important.
1. Common law
A wild animal is regarded by the common law as being a thing which is capable of being
privately owned (a res in commercio), but before ownership of a wild animal is acquired
it is regarded as an unowned thing (a res nullius). Ownership of an unowned thing is
acquired by means of occupatio, which requires that the person claiming ownership must
have the intention to become owner (animus domini) and must exercise physical control
6
World Conservation Monitoring Centre Development of a National Biodiversity Index (1992).
7
Department of Environmental Affairs and Tourism White Paper on the Conservation and Sustainable Use
of South Africa’s Biological Diversity (1997) (hereafter referred to as ‘White Paper’) at 12.
8
Ibid.
9
For detailed statistics, see White Paper (n 7) at 12–13.
10
Act 10 of 2004.
11
See discussion on this above, 31.

Conservation of Biodiversity 99
over the thing.12 Animals which have been captured, for however long a time period,
regain their natural state of freedom once they escape and are no longer under the physi-
cal control of the erstwhile owner.13
The ramifications of the common law for the conservation of wild animals is that any
animal not within the physical control of a person is not protected from being hunted (and
killed or captured) by any other person. Moreover, if an animal is protected by virtue of
being within a fenced farm or protected area (a game reserve, for example) and hence
under the requisite physical control, it will lose such protection as soon as it escapes
from the fenced area. This can easily happen even if the fence is not defective. Many
wild animals which are not within protected areas are found on privately owned game
farms, which are widely regarded as performing an important conservation function.
Wild animals on these farms are often worth a great deal of money, and thus the fact
that an owner of an animal loses ownership if the animal escapes from his property is a
problem for game farmers.14
1.1 Game Theft Act 105 of 1991

Fortunately for the game farmer, the legislature addressed this problem by means of the
Game Theft Act 105 of 1991.15 The Act provides that notwithstanding the provisions of any
other law or the common law, a person who keeps or holds game16 or on behalf of whom game
is kept or held on land that is sufficiently enclosed,17 or who keeps game in a pen or kraal
or in or on a vehicle, shall not lose ownership of that game if the game escapes from such
enclosed land or from such pen, kraal or vehicle.18 In addition, the ownership of game shall
not vest in any person who, contrary to the provisions of any law or on the land of another
person without the consent of the owner or lawful occupier of that land, hunts, catches or
takes possession of game, but it remains vested in the owner or vests in the owner of the land
on which it has been so hunted, caught or taken into possession, as the case may be.19
The Act also prohibits any person from entering another person’s land with intent
to steal game thereon or to disperse game from that land or, without entering another
person’s land, from intentionally dispersing or luring away game from another person’s
land.20 The Act also provides for the court, once it has convicted a person of either theft of
12
See AJ van der Walt & GJ Pienaar Introduction to the Law of Property (6 ed) 2009 at 100.
13
Ibid at 101.
14
See AB Rumsey ‘Terrestrial wild animals’ in HA Strydom & ND King (eds) Fuggle and Rabie’s Environ-
mental Management in South Africa 2 ed (2009) 394 at 405.
15
According to the long title of the Act, the purpose of the Act is to ‘regulate the ownership of game in
certain instances; to combat the theft and wrongful and unlawful hunting, catching and taking into pos-
session of game; and to provide for matters connected therewith’.
16
Defined as all game kept or held for commercial or hunting purposes and includes the meat, skin, carcass
or any portion of the carcass of that game (s 1).
17
For these purposes land is deemed to be sufficiently enclosed if, according to a certificate of the Adminis-
trator of the province in which the land is situated, or his assignee, it is sufficiently enclosed to confine to
that land the species of game mentioned in the certificate (s 2(2)(a)).
18
Section 2(1)(a).
19
Section 2(1)(b).
20
Section 3(1). Contravention is an offence for which the maximum penalty is either a fine of R8 000 and/or
imprisonment for two years in a district magistrate’s court or a R40 000 fine and/or ten years’ imprison-
ment in a regional court (s 6). There is a presumption of intention to commit this offence in s 3(2).

game or malicious damage to property where the property is game, to award compensa-
tion to the owner.21
2. Provincial nature conservation legislation

The legislation concerning conservation of wildlife (both wild animals and plants) was
(and in many respects still is) greatly fragmented. Each of the four provinces had its own
nature conservation ordinance,22 since the responsibility for the preservation of flora and
fauna and the regulation and control of hunting of game and other animals was vested
in the provincial administrations.23 These ordinances were broadly similar, although
with certain differences in the detail. The Natal Nature Conservation Ordinance, as an
example, regulates the following:
●● Game;
●● Private reserves;
●● Mammals;
●● Professional hunters and hunting outfitters;
●● Amphibians, invertebrates and reptiles;
●● Wild birds;
●● Freshwater fish;
●● Coastal fishing;
●● Indigenous plants.
Essentially the approach taken by this ordinance is to regulate hunting (of ‘game’) by a
combination of a licence system, listing of species of game in different categories, open
and closed seasons and prohibited hunting measures. The different categories of game
provide for different degrees of protection (for example, a licence to hunt ‘specially pro-
tected’ game is far more difficult to obtain than one to hunt ‘ordinary’ game). Whether
there is a licence or not, there are certain methods of hunting that are prohibited (for
example, night hunting, hunting from a public road and use of snares, bows and arrows
and poison).
The Chapter on Mammals deals with the keeping of animals in captivity and zoos,
whereas the approach taken in respect of invertebrates, reptiles, amphibians, birds and
indigenous plants is a listing approach which prohibits the capture/gathering/killing of
these species without the necessary permit. All of these regulatory provisions apply, in
effect, to those species which occur outside of protected areas, since these activities are
prohibited in protected areas in any event.
In addition to the four provincial ordinances, most of the creations of the apart-
heid regime known as ‘independent homelands’ (the so-called TBVC states)24 and
21
Section 7 and GN R732 in GG 14765 of 30 April 1993.
22
Natal Nature Conservation Ordinance 15 of 1974; Orange Free State Nature Conservation Ordinance
8 of 1969; Cape Nature and Environmental Conservation Ordinance 19 of 1974; and Transvaal Nature
Conservation Ordinance 12 of 1983.
23
Section 11(1)(a) of the Financial Relations Act 65 of 1976, which was repealed by the Provincial Govern-
ment Act 69 of 1986.
24
Transkei, Bophuthatswana, Venda and Ciskei.

self-governing territories25 also had their own nature conservation legislation. In total,
then, in 1994 (and for several years thereafter) there were thirteen enactments in the
country dealing with wildlife conservation.
In 1997, in Environmental Law: A South African Guide, I observed that ‘considerable
work faces most provinces in rationalising the relevant legislation since more than one
existing enactment is currently applicable in that province’.26 There has been little legisla-
tive activity in the area of nature conservation at provincial level, so there is still a lack of
rationalisation more than ten years later.
At the time of writing, the following pre–1994 provincial legislation is still in force:
●● Nature Conservation Ordinance 8 of 1969 (Orange Free State) is still applicable in
the Free State.
●● Nature Conservation Ordinance 15 of 1974 (Natal) still applies in KwaZulu-Natal.
●● Nature and Environmental Conservation Ordinance 19 of 1974 (Cape) applies in the
●● Western Cape, Eastern Cape, Northern Cape and parts of the North West.
●● Nature Conservation Ordinance 12 of 1983 (Transvaal) still applies in Gauteng.
●● Nature Conservation Act 10 of 1987 (Ciskei) still operates in the Eastern Cape.
●● Decree 9 (Transkei) of 1992 still applies in the Eastern Cape.
●● KwaZulu Nature Conservation Act 8 of 1975 still applies in KwaZulu-Natal.
Since 1994, three provinces have enacted nature conservation legislation — Mpuma-
langa, KwaZulu-Natal and Northern Cape.27 The Mpumalanga Act is essentially a
reworking of the Transvaal Nature Conservation Ordinance (with very few substantive
changes)28 and the KwaZulu-Natal Act deals currently only with institutional arrange-
ments. The latter does contain several provisions dealing with issues currently regulated
by the Natal Ordinance (eg conservation of species, hunting regulation, etc) but these
provisions, although enacted, have yet to come into force. The Northern Cape’s Act cor-
responds broadly with the objectives of the National Environmental Management: Biodi-
versity Act, discussed below.
Otherwise, the state of nature conservation legislation in the provinces is, at best, as it
was before 1994 or, at worst, confused (some would say chaotic) given that there is often
more than one legislative instrument operating in parallel and regulating the same subject
matter. For example, in the Eastern Cape, there are currently three valid pieces of nature
conservation legislation: the Cape Ordinance, and legislation from the former Transkei
and Ciskei. In KwaZulu-Natal, the 1974 Ordinance and the KwaZulu Nature Conserva-
tion Act operate in parallel and nature conservation officials may enforce either at their
discretion.29 Clearly, there is an urgent need (one which has been urgent since 1994) for
rationalisation of this legislation. One of the probable reasons why this took some time
is that provinces were waiting for the enactment of national legislation (the Biodiversity
Act) and to see how that might affect biodiversity conservation in the provinces, before
25
Such as KwaZulu, Gazankulu, Lebowa and Qwaqwa.
26
Eastern Cape, for example, has the Cape Ordinance and Ciskei and Transkei Acts to rationalise.
27
Mpumalanga Nature Conservation Act 10 of 1998; KwaZulu-Natal Nature Conservation Management
Act 9 of 1997; and Northern Cape Nature Conservation Act 2009. At the time of writing, Free State has
published a Nature Conservation Bill for comment (PG 23 of 7 May 2010).
28
Mpumalanga is geographically part of the former Transvaal.
29
Personal communication with various members of the KwaZulu-Natal Nature Conservation Services.

embarking on legislative development. The Act has, however, been in effect for longer
than five years and the lack of legislative change in several provinces suggests that this
was not the only significant reason.
3. National Environmental Management: Biodiversity Act 10 of 2004

The National Environmental Management: Biodiversity Act (hereafter referred to as the
Biodiversity Act) is based on the White Paper on the Conservation and Sustainable Use
of South Africa’s Biological Diversity30 and took several years before it was finally enact-
ed.31 Originally, it was intended to incorporate provisions on protected areas as well, but
the protected areas aspects were included in a separate Act.32 According to the long title
of the Act, its objectives are to ‘provide for the management and conservation of South
Africa’s biodiversity within the framework of the National Environmental Act, 1998; the
protection of species and ecosystems that warrant national protection; the sustainable
use of indigenous biological resources; the fair and equitable sharing of benefits arising
from bioprospecting involving indigenous biological resources; the establishment and
functions of a South African National Biodiversity Institute; and for matters connected
therewith’. These objectives should be considered in the light of the objectives of the
Convention on Biological Diversity (CBD):
●● The conservation of biological diversity;
●● The sustainable use of the components of biodiversity;
●● The fair and equitable sharing of the benefits arising out of the utilisation of genetic
resources, including by appropriate access to genetic resources and by appropriate
transfer of relevant technologies, taking into account all rights over those resources
and to technologies; and by appropriate funding.
3.1 Interpretation, objectives and application of the Act

This is covered in Chapter 1. Section 2 sets out the objectives of the Act, which echo the
long title. The primary objectives in s 2(a) are essentially the objectives of the Convention
on Biological Diversity, to which this Act is supposed to give domestic effect. Objec-
tives are also stated to include (not mentioned in the long title) giving effect to ratified
international agreements relating to biodiversity which bind South Africa and the pro-
vision for co-operative governance in biodiversity management and conservation. The
other international agreements intended to be implemented by the Biodiversity Act are
the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES); the Convention on Wetlands of International Importance (Ramsar Convention);
and the Bonn Convention on Migratory Species of Wild Animals.33
30
Department of Environmental Affairs and Tourism White Paper on the Conservation and Sustainable Use
of South Africa’s Biological Diversity (1997).
31
The date of commencement of the Act was 1 September 2004, except for ss 49, 57, 65, 66, 71 and Chapter 7,
which came into effect on 1 April 2005; and Chapter 6 and s 105 came into effect on 1 January 2006 (Proc
R47 in GG 26887 of 8 October 2004).
32
National Environmental Management: Protected Areas Act 57 of 2003, discussed below at 105.
33
See discussion on these Conventions in Chapter 3.

Section 3 is headed ‘State’s trusteeship of biological diversity’, but instead of providing

for trusteeship as the National Water Act does in s 3 of that Act, the Biodiversity Act
contains rather an anaemic provision:
‘In fulfilling the rights contained in section 24 of the Constitution, the state through its
organs that implement legislation applicable to biodiversity, must—
(a) manage, conserve and sustain South Africa’s biodiversity and its components and
genetic resources; and
(b) implement this Act to achieve the progressive realisation of those rights.’
Chapter 1 also situates this Act within the ‘suite’ of environmental legislation that
includes NEMA and the ‘specific environmental management Acts’,34 which means that
the environmental management principles in NEMA, as well as the enforcement and
compliance mechanisms in that Act (as amended) apply to this Act. Section 8 deals in
some detail with conflict between other legislation and this Act, and essentially places the
Act in priority vis-à-vis other national legislation, leaving it to s 146 of the Constitution
to address a conflict between the Act and provincial legislation.
A recurring component of the Act (also not unexpected) is the delegation of lawmak-
ing power to the Minister in order to flesh out the Act. Section 9 deals with norms and
standards, empowering the Minister to issue norms and standards for the achievement of
the objectives of the Act, and to set indicators to measure compliance with the norms and
standards. This section does not set out any guidelines for the exercise of the Minister’s
powers in this regard, which is of some concern, but these powers would have to be read
with the principles in NEMA and the context within which the Minister is issuing such
measures, which is more than likely more explicitly regulated elsewhere in the Act.
This power has been exercised: national norms and standards for the management
of elephants in South Africa35 includes the goals of ensuring that elephants are man-
aged in a way that ensures the long-term survival of elephants within their ecosystem
such that they do not disrupt the ecological integrity of such ecosystems; and ensur-
ing the sustainable use of hair, skin, meat and ivory products. Moreover, the aim is to
ensure that the management of elephants is regulated in a way that is uniform across the
Republic; consistent with South Africa’s obligations in terms of international agreements
on biodiversity management; and in accordance with national policies on biodiversity
management and sustainable development. In addition, national norms and standards for
the marking of rhinoceros horn and the hunting of white rhinoceros for trophy hunting
purposes have also been published.36 Draft National Norms and Standards for the Regula-
tion of the Hunting Industry have also been published, although the final document had
not appeared at the time of writing;37 and the same applies to draft Norms and Standards
for the Management of Damage-causing Animals in South Africa.38
34
See above, 42.
35
GN 251 in GG 30833 of 29 February 2008.
36
GN 756 in GG 32426 of 20 July 2009.
37
GN 1614 in GG 32798 of 11 December 2009.
38
GN 1084 in GG 33806 of 26 November 2010.

3.2 South African National Biodiversity Institute

Chapter 2 establishes the South African National Biodiversity Institute (SANBI), sets
out its governance structures etc, its operating procedures, details of administration and
financial matters, and its powers over national botanical gardens. This is a fairly lengthy
chapter (ss 10–36) and largely administrative. This body replaced the National Botanical
Institute (the old NBI, established under the Forest Act,39 became the SANBI), resulting
in the NBI’s focus having to expand beyond only plants to other aspects of biodiversity.
The functions40 contain several advisory roles and management of botanical gardens,
herbaria etc which were previously the task of the NBI. In addition, the SANBI’s func-
tions include the monitoring and reporting on biodiversity matters in South Africa, co-
ordination and promotion of the taxonomy of South Africa’s biodiversity, provision of
information on biodiversity, research on biodiversity and so on. Clearly, the National
Biodiversity Institute has a very important role to play in the successful operation of this
Act and the meeting of its objectives.
3.3 Biodiversity planning and monitoring

In the same way that a central aspect of NEMA is integrated environmental planning,
biodiversity planning is also placed by the Act at the vanguard of biodiversity conserva-
tion. The framework of plans/strategies provided for in Chapter 3 operates at different
levels but in a manner co-ordinated with one another and with the environmental man-
agement and implementation plans required by NEMA. At the top of the hierarchy is the
national biodiversity framework (NBF), which the Minister must prepare within three
years of the date of commencement of the Act.41 The NBF is to provide for an integrated,
co-ordinated and uniform approach to biodiversity management by organs of state in all
spheres of government, non-governmental organisations, the private sector, local com-
munities, other stakeholders and the public; and identify priority areas for conservation
action and the establishment of protected areas.42
The NBF was declared in 2009,43 to be applicable for five years. It contains five stra-
tegic objectives (under which are 33 priority actions), which are: an enabling policy and
legislative framework integrates biodiversity management objectives into the economy;
enhanced institutional effectiveness and efficiency ensures good governance in the bio-
diversity sector; integrated management of terrestrial and aquatic ecosystems minimises
the impact of threatening processes on biodiversity, enhances ecosystem services and
improves social and economic security; human development and well-being is enhanced
through sustainable use of biological resources and equitable sharing of the benefits; and
a system of protected areas and conservation areas conserves a representative sample of
biodiversity and maintains key ecological processes across the landscape and seascape.
A second type of plan is the bioregional plan, for a bioregion declared by the Minis-
ter — a bioregion is a geographic region which has in terms of s 40(1) been determined
39
Act 122 of 1984, now replaced by the new National Forests Act 84 of 1998.
40
Section 11.
41
Section 38(1)(a).
42
Section 39.
43
GN 813 in GG 32474 of 3 August 2009.

as a bioregion for the purposes of the Act.44 The bioregional plan is intended to set out
measures for the effective management of biodiversity in the region and to provide for
monitoring of the plan.45 There is a Guideline regarding the Determination of Bioregions
and the Preparation and of Bioregional Plans,46 which specifies that the purpose of a
bioregional plan is to provide a map of biodiversity priorities with accompanying land-
use planning and decision-making guidelines, to inform land-use planning, environmen-
tal assessment and authorisations, and natural resource management by a range of sectors
whose policies and decisions have an impact on biodiversity.
Whereas the NBF and bioregional plans are plans drawn up by the state, biodiversity
management plans can be submitted by both organs of state and ‘any person’.47 Such
management plans are for conservation management of ecosystems, indigenous species
or migratory species. Norms and Standards for Biodiversity Management Plans for Spe-
cies (BMP-S)48 provide a national approach and minimum standards for the development
of biodiversity management plans for species. A biodiversity management plan must be
aimed at ensuring the long-term survival in nature of the species to which the plan relates;
provide for the responsible person, organisation or organ of state to monitor and report on
progress with implementation of the plan; and be consistent with various legislative and
planning requirements. At the time of writing, there has only been one BMP-S (albeit in
draft form), dealing with a particularly endangered cycad species in the Eastern Cape.49
The Act also provides for the co-ordination and alignment of plans in this Chapter with
other relevant plans — the NEMA plans, as indicated above, integrated development
plans50 and others.51 The Minister is also required to provide for monitoring and to set
indicators for determining the conservation status of our biodiversity and any negative
and positive trends affecting the conservation status thereof.52 Another mandatory task
for the Minister is to promote research on biodiversity conservation, by both the SANBI
and other bodies.53
Clearly, planning is a centrally important component of effective biodiversity con-
servation. The combination of public and private efforts, in respect particularly of the
biodiversity management plans and research, is to be welcomed and the co-ordination
and alignment of plans appear to have been well considered, at least in theory. If there is a
nagging worry about this chapter, it is how well it will work out in practice. If the finalisa-
tion of the NEMA plans is anything to go by, it could be years before a comprehensive
framework of plans is set up.
44
Section 1. In the Bill, ‘bioregion’ was defined as ‘a geographic region that contains whole or several nested
ecosystems and is characterised by its landforms, vegetation cover, human culture and history’.
45
Section 41.
46
GN 291 in GG 32006 of 16 March 2009.
47
Section 43.
48
GN R214 in GG 31968 of 2 March 2009.
49
GN 798 in GG 33456 of 13 August 2010.
50
Integrated development plans are adopted by municipalities in terms of the Local Government: Municipal
Systems Act 32 of 2000.
51
Section 48.
52
Section 49.
53
Section 50.

3.4 Threatened or protected ecosystems and species

This is the subject of Chapter 4, the objectives of which are to provide for the protection of
threatened ecosystems and species, to give effect to the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES) and to ensure that utilisation of
biodiversity is sustainable.54 Protection of both ecosystems and species is provided for by
a listing mechanism — whereby the Minister lists those ecosystems and species that are
threatened in different categories: critically endangered,55 endangered,56 vulnerable57 and
protected.58 The Minister may also identify threatening processes in listed ecosystems,
which will be regarded as a ‘specified activity’ in terms of s 24 of NEMA (which cannot
be carried out without authorisation),59 and plans are required to take account of listed
ecosystems.
As far as species are concerned, the Act prohibits a person from carrying out a restricted
activity involving a specimen of a listed threatened or protected species without a permit
issued in terms of Chapter 7.60 Restricted activities, in relation to such species, are:61
(i) Hunting, catching, capturing or killing any living specimen of a listed threatened
or protected species by any means, method or device whatsoever, including search-
ing, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injur-
ing with intent to hunt, catch, capture or kill any such specimen;
(ii) Gathering, collecting or plucking any specimen of a listed threatened or protected
species;
(iii) Picking parts of, or cutting, chopping off, uprooting, damaging or destroying, any
specimen of a listed threatened or protected species;
(iv) Importing into the Republic, including introducing from the sea, any specimen of
a listed threatened or protected species;
(v) Exporting from the Republic, including re-exporting from the Republic, any
specimen of a listed threatened or protected species;
54
Section 51.
55
A critically endangered ecosystem is an ecosystem that has undergone severe degradation of ecological
structure, function or composition as a result of human intervention and is subject to an extremely high
risk of irreversible transformation (s 52(2)(a)) and a critically endangered species is any indigenous species
facing an extremely high risk of extinction in the wild in the immediate future (s 56(1)(a)).
56
Endangered ecosystems are ecosystems that have undergone degradation of ecological structure, function
or composition as a result of human intervention, although they are not critically endangered ecosystems
(s 52(2)(b)), and an endangered species is any indigenous species facing a high risk of extinction in the wild
in the near future, although they are not a critically endangered species (s 56(1)(b)).
57
Vulnerable ecosystems are ecosystems that have a high risk of undergoing significant degradation of
ecological structure, function or composition as a result of human intervention, although they are not
critically endangered ecosystems or endangered ecosystems (s 52(2)(c)), and vulnerable species are any
indigenous species facing an extremely high risk of extinction in the wild in the medium-term future,
although they are not a critically endangered species or an endangered species (s 56(1)(c)).
58
Protected ecosystems are ecosystems that are of high conservation value or of high national or provincial
importance, although they are not listed under the three categories above (s 52(2)(d)), and protected species
are any species which are of such high conservation value or national importance that they require national
protection, although they are not listed in the above categories (s 56(1)(d)).
59
This should refer to ‘listed activity’, which is the term used in NEMA as amended, but the Biodiversity Act
was not changed to take account of the amendment. The effect is the same.
60
Section 57(1).
61
Defined in s 1.

(vi) Having in possession or exercising physical control over any specimen of a listed
threatened or protected species;
(vii) Growing, breeding or in any other way propagating any specimen of a listed
threatened or protected species, or causing it to multiply;
(vii) Conveying, moving or otherwise translocating any specimen of a listed threatened
or protected species;
(ix) Selling or otherwise trading in, buying, receiving, giving, donating or accepting
as a gift, or in any way acquiring or disposing of any specimen of a listed threat-
ened or protected species;
(x) Any other prescribed activity which involves a specimen of a listed threatened or
protected species[.]’
In February 2007, threatened or protected species regulations (known as TOPS regula-
tions) were published,62 together with lists of critically endangered, endangered, vulner-
able and protected species.63 These regulations came into effect on 1 June 2007.64 The
purpose of the regulations is to:
●● further regulate the permit system set out in Chapter 7 of the Biodiversity Act in so
far as that system applies to restricted activities involving specimens of listed threat-
ened or protected species;
●● provide for the registration of captive breeding operations, commercial exhibition
facilities, game farms, nurseries, scientific institutions, sanctuaries and rehabilitation
facilities and wildlife traders;
●● provide for the regulation of the carrying out of a specific restricted activity, namely
hunting;
●● provide for the prohibition of specific restricted activities involving specific listed
threatened or protected species;
●● provide for the protection of wild populations of listed threatened species; and
●● provide for the composition and operating procedure of the Scientific Authority
(required for purposes of CITES).
Chapter 2 of the regulations deals with the permitting system, providing for issuing
authorities (shared between the Minister and relevant MECs), the application procedure
and factors to be taken into account in deciding on applications, which provides detail
in respect of different types of applications. This chapter also includes provision for risk
assessments, technical aspects relating to the permits themselves (and their contents), and
circumstances in which permit applications must be refused. In this respect, there are
several prohibited activities applicable to ‘listed large predators’ and the two species of
rhinoceros, which activities are related to so-called canned hunting.
Prohibited activities are also specified for encephalartos (cycad) species, which
include gathering and trade, save in specified exceptional circumstances. This clearly
reflects that there is a serious threat to cycads from unscrupulous collectors. The chapter
concludes with a lengthy section on prohibited hunting methods, which covers, inter alia,
62
GN R152 in GG 29657 of 23 February 2007. These regulations have subsequently been amended several
times.
63
GN R151 in GG 29657 of 23 February 2007.
64

the expected methods such as poison and snares and use of spotlights. It is interesting
that the use of dogs is prohibited unless used for tracking a wounded animal, or flushing,
pointing or retrieving. The controversial ‘traditional’ practice of dog-hunting, if carried
out in respect of listed species, would thus be illegal.
Chapter 3 regulates the registration of captive breeding operations, commercial exhibi-
tion facilities, game farms, nurseries, scientific institutions, sanctuaries, rehabilitation
facilities and wildlife traders; Chapter 4 the renewal, amendment and cancellation of
permits and registration certificates; and Chapter 5 hunting organisations (a concept
which is not defined). Chapter 6 deals with appeals and Chapter 7 with the Scientific
Authority. These Chapters deal largely with administrative requirements and flesh out the
permitting system provided in Chapter 7 of the Act.
Under the miscellaneous provisions in Chapter 8, there is a requirement that persons in
possession of elephant ivory and rhinoceros horn have these marked in accordance with
the regulations. There is also a set of transitional provisions in respect of the operations
dealt with in Chapter 3, provision for annual off-take limits and a comprehensive list of
offences attracting a maximum penalty of a fine of R100 000 or three times the com-
mercial value of the specimen in respect of which the offence was committed, whichever
is the greater; imprisonment for a period not exceeding five years; or both.65
The penalties do not provide for degrees of severity depending on the extent of protec-
tion of the species in respect of which the offence is committed. This can be compared
to the approach taken in, for instance, the Natal Nature Conservation Ordinance, which
provides for different maximum penalties in respect of protected game and specially
protected game, and then, on top of this distinction, provides for even more severe penal-
ties for offences committed in respect of elephant or rhinoceros.
The lists under the Biodiversity Act and the lists under the provincial ordinances pre-
sent some anomalies. For example, the oribi is regarded as ‘endangered’ under the Bio-
diversity Act classification, and yet is merely ‘protected’ under the Natal Ordinance. On
the other hand, the elephant and white rhinoceros are specially protected under the Natal
Ordinance and ‘protected’ (the lowest of the four categories) in the Biodiversity Act list. It
appears that the lists under the Biodiversity Act, as would be expected, reflect the current
position, whereas the categorisation of species under some of the provincial ordinances
reflects degrees of threat that have been improved over the years (in respect of the white
rhinoceros, for example). The listing of the African elephant as ‘protected’, which is only
the fourth (lowest) in the level of protection, raises some interesting thoughts about its
protection status domestically vis-à-vis its status under CITES.
The validity of certain of the TOPS regulations – those which dealt the practice of ‘put
and take’ in respect of listed large predators (the regulations addressing canned hunt-
ing) — was challenged in South African Predator Breeders Association v Minister of
Environmental Affairs and Tourism.66 The Supreme Court of Appeal declared the par-
ticular regulations invalid for essentially two reasons. The first was that the regulations
were aimed at unethical hunting, which is not consistent with the legislative purpose of
the Act, viz the conservation of species under threat. The second was that, in the light
65
At the time of writing, a draft amendment to the regulations proposes to increase penalties substantially
(GN 1100 in GG 33833 of 3 December 2010).
66
(2010) ZASCA 151.

of the evidence available to the Minister (which suggested that captive-bred lions — the
subject matter of the dispute — could not be rehabilitated once raised by humans), the
setting of a specific period after a lion’s release into the wild after which it could be law-
fully hunted was irrational. Canned hunting, which attracts very strong opposition, will
consequently have to be regulated in another way.
Trade in endangered species is covered by Part 3 of Chapter 4. This part establishes
the scientific authority which is required by CITES,67 provides for the Minister to carry
out an oversight role in this respect,68 and requires the scientific authority to publish
annual non-detriment findings in respect of trade in the relevant species.69 The Act
does not explicitly provide for a CITES management authority, which is required by the
Convention, but this is addressed in CITES regulations published in 2010.70 The regula-
tions designate the Minister as the Management Authority (required under CITES), also
setting out its duties. The Minister is the issuing authority for permits and certificates
relating to the import, export and re-export of listed species: in a protected area or an area
managed or under control of an organ of state; where the listed species are marine spe-
cies, in marine protected areas; by a provincial department on land under its jurisdiction;
or by a national department on land under its jurisdiction. The MEC is the Provincial
Management Authority (PMA) for CITES-related species. The PMA’s duties are also set
out in the regulations. The PMA is the issuing authority for all certificates and permits in
respect of listed species that are not within the issuing authority of the Minister.
The regulations also set out in detail the duties of the Scientific Authority, and cover
the conditions for trade, which include the permitting requirements required by CITES.
Other topics addressed by the regulations are registration and marking, exemptions and
special procedures, offences and penalties, and financial provisions.
In 2009, the Minister published a draft list of threatened ecosystems for comment.71 Sec-
tion 52 of the Act empowers the Minister to publish a list of threatened ecosystems that are
in need of protection, and the section categorises such ecosystems into four categories: criti-
cally endangered, endangered, vulnerable and protected (the criteria for which are set out
in s 52). Section 53 empowers the Minister to declare activities to be threatening processes
in listed ecosystems, and these processes require authorisation in terms of s 24 of NEMA.72
Listed ecosystems are also relevant in the context of biodiversity planning and monitoring.
The ultimate purpose of listing ecosystems is to reduce the rate of ecosystem and species
extinction. Those sites that have not reached the threatened status yet can be listed (as
‘protected’) for purposes of preserving sites of high conservation value.
The listing (identification) of ecosystems was informed in the draft listing notice by the
principles that the approach must be explicit and repeatable; the approach must be target-
driven and systematic, especially for threatened ecosystems; the approach must follow
the same logic as the IUCN approach to listing threatened species, whereby a number of
criteria are developed and an ecosystem is listed based on its highest ranking criterion;
67
Section 60.
68
Section 59.
69
Section 62.
70
GN R173 in GG 33002 of 5 March 2010.
71
72
See discussion of this process below, at 239ff.

and the identification of ecosystems to be listed must be based on scientifically credible,

practical and simple criteria, which must translate into spatially explicit identification of
ecosystems.
The criteria for listing of ecosystems were identified as: irreversible loss of natural
habitat; ecosystem degradation and loss of integrity; rate of loss of natural habitat; lim-
ited extent (ie the physical size of the ecosystem) and imminent threat; threatened plant
species associations; threatened animal species associations; fragmentation; and priority
areas for meeting explicit biodiversity targets as defined in a systematic biodiversity plan.
Not all criteria are universally applied at present due to current data constraints.
The draft listing notice provided maps of the listed ecosystems and then listed the
ecosystems in question (they are listed in a localised manner, with the listing providing
the criterion or criteria in terms of which the specific ecosystem was listed). The ecosys-
tems listed in the document make up 9,5% of the country, with critically endangered and
endangered ecosystems together accounting for 2,7% and vulnerable ecosystems for a
further 6,8%.
This list, once finalised, would be a clearly welcome addition to the Biodiversity Act’s
regulatory regime, because the provisions relating to protected ecosystems are, in effect,
not operational until the list is published. It is critical that ecosystems generally are pro-
tected and not just those that are found within formally protected areas and it is hoped that
the relevant provisions in the Act, allied to the identified ecosystems, will be successful.
3.5 Species and organisms posing potential threats to biodiversity

Chapter 5 was originally headed ‘Alien and Invasive Species’ in the Bill, and this is
largely its focus. The combating of alien and invasive species is raised as a state respon-
sibility in terms of the Convention on Biological Diversity73 and this is a big problem in
South Africa. The purpose of this chapter is to prevent the introduction of alien species
and to manage and control those that have already been introduced into the country. The
Act addresses this by means of a process entailing the declaration of restricted activi-
ties, which may only be carried out subject to a permit74 or, as far as certain species are
concerned, not at all.75 Restricted activities in respect of alien and invasive species are:76
‘(i) Importing into the Republic, including introducing from the sea, any specimen of
an alien or listed invasive species;
(ii) Having in possession or exercising physical control over any specimen of an alien
or listed invasive species;
(iii) Growing, breeding or in any other way propagating any specimen of an alien or
listed invasive species, or causing it to multiply;
(iv) Conveying, moving or otherwise translocating any specimen of an alien or listed
invasive species;
73
Article 8(h) of the CBD.
74
Section 65.
75
Section 67.
76
Defined in s 1.

(v)
Selling or otherwise trading in, buying, receiving, giving, donating or accept-
ing as a gift, or in any way acquiring or disposing of any specimen of an alien or
listed invasive species;
(vi) Any other prescribed activity which involves a specimen of an alien or listed
invasive species.’
An alien species is a species that is not an indigenous species; or an indigenous species
translocated or intended to be translocated to a place outside its natural distribution range
in nature, but not an indigenous species that has extended its natural distribution range by
natural means of migration or dispersal without human intervention, whereas an invasive
species is any species whose establishment and spread outside of its natural distribution
range threaten ecosystems, habitats or other species or have demonstrable potential to
threaten ecosystems, habitats or other species; and may result in economic or environ-
mental harm or harm to human health.77
The Minister may exempt from the ambit of restricted activities either specified alien
species or alien species of a specified category.78 This exemption process is critical to the
operation of these control provisions, since every alien species is subject to the prohibi-
tion of restricted activities until such time as the exemptions are declared. This part of the
Act came into effect on 1 April 2005,79 and since that date, any of the restricted activities
listed above are unlawful in respect of any alien species, whether they are potentially
troublesome or not. Technically, this means that all nurseries selling any exotic plants
need permits, as do all landowners possessing alien species of plants or animals (most
livestock is non-indigenous). This is a ridiculous situation, which means that this part of
the Act is not being enforced. There was a draft list in September 200780 and a very dif-
ferent draft list in April 2009,81 but the final list, which will enable the Act to be enforced
logically in respect of alien species, is still awaited.
Section 69 imposes a duty of care on a person to carry out permitted activities in
respect of alien species in such a way that harm to biodiversity is prevented or minimised.
This section allows a competent authority to direct the individual to take steps, to take
steps itself if the individual is in default and to recover costs.
Part 2 of the chapter is similar, except that the focus is on invasive species (which may
include indigenous species that may be invasive in areas outside of their natural range).
This part also includes provision for restricted activities in respect of listed invasive
species,82 and the duty of care (including provision for the power of any person to request
competent authorities to issue directives),83 but also includes a section that provides for
the control and eradication of listed invasive species by ‘appropriate’ means and meth-
ods.84 Moreover, the Act requires invasive species control plans and status reports to be
77
Section 1.
78
Section 66.
79
Proc R47 in GG 26887 of 8 October 2004.
80
GN 1147 in GG 30293 of 17 September 2007.
81
GN 348 in GG 32090 of 3 April 2009.
82
Section 71. Species are listed in terms of s 70.
83
Section 73.
84
Section 75.

prepared by protected areas management authorities and all organs of state for land under
their control.85 A draft list of invasive species appeared in 2009.86
Part 3, headed ‘Other threats’, contains one section, s 78, which deals with genetically
modified organisms. It provides that if the Minister has reason to believe that the release
of a genetically modified organism (GMO) into the environment under permit in terms of
the Genetically Modified Organisms Act87 may pose a threat to any indigenous species or
the environment, no permit for the release of the GMO may be issued unless an environ-
mental assessment has been conducted in terms of Chapter 5 of NEMA as if such release
were a listed activity contemplated by that Chapter.88 While this is an improvement on
the Bill, which completely ignored GMOs, it still falls short of what is acceptable, since
the decision as to whether the release of a GMO should be subject to environmental
assessment in terms of NEMA depends on the Minister’s discretion. The precautionary
principle, a formulation of which is part of our law in terms of s 2 of NEMA, would surely
dictate that all releases of GMOs should be subject to such assessment.
On paper, the alien and invasive species provisions appear to cover the matter com-
prehensively, but the proof of the pudding will be in the eating. The Conservation of
Agricultural Resources Act89 currently addresses alien invader plants but the legislation
is clearly not being implemented adequately.
3.6 Bioprospecting, access and benefit-sharing

This is probably one of the most controversial areas of the Act, and is covered in Chap-
ter 6. The purpose of the chapter, which corresponds to the third main objective of the
Convention on Biological Diversity, is to regulate bioprospecting90 of genetic material
derived from indigenous biological resources and to provide for fair and equitable sharing
of benefits arising from bioprospecting. The commercialisation phase91 of bioprospect-
85
Sections 76 and 77.
86
GN 350 in GG 32090 of 3 April 2009.
87
Act 15 of 1997. This Act is discussed below, 138ff.
88
See below, 239ff.
89
Act 43 of 1983. See discussion below, 137.
90
‘“Bioprospecting” in relation to indigenous biological resources, means any research on, or development
or application of, indigenous biological resources for commercial or industrial exploitation, and includes—
(a) the systematic search, collection or gathering of such resources or making extractions from such
resources for purposes of such research, development or application;
(b) the utilisation for purposes of such research or development of any information regarding any tradi-
tional uses of indigenous biological resources by indigenous communities; or
(c) research on, or the application, development or modification of, any such traditional uses, for com-
mercial or industrial exploitation’ (s 1).
91
‘“Commercialisation” , in relation to indigenous biological resources, includes the following activities:
(a) the filing of any complete intellectual property application, whether in South Africa or elsewhere;
(b) obtaining or transferring any intellectual property rights or other rights;
(c) commencing clinical trials and product development, including the conducting of market research
and seeking pre-market approval for the sale of resulting products; or
the multiplication of indigenous biological resources through cultivation, propagation, cloning or other
means to develop and produce products, such as drugs, industrial enzymes, food flavours, fragrances,
cosmetics, emulsifiers, oleoresins, colours and extracts; and ‘commercialisation phase of bioprospecting’
means any research on, or development or application of, indigenous biological resources where the nature
and extent of any actual or potential commercial or industrial exploitation in relation to the project is
sufficiently established to begin the process of commercialisation’ (s 1).

ing may only take place subject to a permit,92 which will be granted only if there is
consent from the person providing access to resources or knowledge (and this consent
must be based on full disclosure of all relevant information)93 and once the Minister has
approved a benefit-sharing agreement, in terms of s 83. The chapter also deals with the
export of indigenous biological resources. This can only take place with a permit, which
must be based on consent and the approval of a material transfer agreement.94 Section
85 establishes a Bioprospecting Trust Fund into which all moneys arising from agree-
ments in terms of this Chapter are paid and from which all payments to the appropriate
beneficiaries will be made. Bioprospecting, access and benefit-sharing regulations were
published in 2008.95
This chapter has been subject to serious criticism from its first appearance but it cer-
tainly seems that several of these concerns have been met. Some of the criticisms made
earlier related to the clarification of the state’s role as trustee of biological resources;
inadequacy of the institutional arrangements provided for; fragmented permitting and
procedural arrangements; the inadequacy of restricting benefit-sharing to holders of
traditional knowledge only; lack of stipulation of benefit-sharing principles; failure to
provide for prior informed consent; confusing definitions; lack of bioprospecting strat-
egy; and inadequate linkages and co-ordination with other legislation.96
The Minister is given rather wide discretion in this chapter (as he or she is throughout
the Act) and some of these shortcomings could be addressed by regulation, but the absence
of principles or guidelines within which the Minister ought to exercise that discretion is
of some concern. Certainly one improvement that has been effected is that the provisions
relating to prior informed consent appear to be adequate on paper — in an earlier version
of the Bill, the Bill effectively forced resource holders to give consent. There may well
still be areas of concern in respect of this chapter, particularly in respect of the Minister’s
unguided discretion. This is particularly so in respect of the granting of exemptions from
Chapter 6’s procedures (or parts thereof ) in terms of s 86. Despite the fact that the Minis-
ter must consult before exercising this power, the absence of any parameters or guidelines
within which the Minister may exercise this important power is a problem.
At the time of writing, the first proposed Benefit Sharing Agreement (the non-confi-
dential aspects) had been published for comment, dealing with an agreement relating to
a pelargonium species.97
3.7 Permits
Chapter 7 of the Act is important because much of the Act revolves around the permitting
of activities, whether in respect of threatened species and activities relating to them, alien
species, listed invasive species or bioprospecting. The chapter sets out the procedural
aspects of the application, including the requirement of an independent risk assessment
92
Section 81.
93
Section 82.
94
Section 84.
95
96
See Rachel Wynberg & Markus Burgener ‘A critical review of provisions relating to bioprospecting,
access and benefit-sharing in the Biodiversity Bill’ (February 2003).
97
GN 677 in GG 33348 of 2 July 2010.

where appropriate.98 Of interest is the ‘issuing authority’ for the permits, who is the
national Minister or other organs of state (at national, provincial and local levels) desig-
nated by the Minister in terms of s 97. It appears that the Minister alone will be respon-
sible for permitting bioprospecting, but other permitting functions may be delegated to
other organs of state. It is not known how the overall permitting functions are envisaged,
although clearly the Minister is unlikely to reserve all permitting functions in the Act to
himself or herself. Chapter 7 also deals with appeals against permitting decisions, which
appeals are made to the Minister,99 who may set up appeal panels for the purpose.100
3.8 Administration, offences and penalties, etc

The Act empowers the Minister in s 97 to make regulations on a wide array of matters
relating to biodiversity and the Act, and provides for consultation and public participation
in this regard. Various offences are provided for and the maximum penalty is an unspeci-
fied fine or five years’ imprisonment.101 It might appear at first glance that the enforce-
ment provisions, being confined to the criminal sanction, are inadequate, but it must be
remembered that NEMA, which contains some worthwhile enforcement mechanisms,
applies to this Act as well.102 Of final note is that the Act repeals the Forest Act, which
remained partly in force only to give life to the National Botanical Institute, which has
become the SANBI.
3.9 General comment

This Act is a welcome addition to South African environmental law. The Convention on
Biological Diversity is a cornerstone of international environmental law and this attempt
by South Africa at putting it into domestic effect is to be applauded. There are, however,
still some areas of concern with the Act, particularly in respect of genetically modi-
fied organisms and bioprospecting and access. On a more general note, there must be
some unease about the wide discretionary powers of the Minister in respect of much of
the ‘flesh’ that must be provided to fill out the skeleton of the Act. This is not so much
concern for the possible abuse of this discretion but rather for the delay in exercising
this discretion (there is a history of long-delayed regulations in environmental law) and
the lack of sufficient guidelines within which such discretion is to be exercised. Delay
is problematic either because many of the important control provisions remain a dead
letter until such time as regulations are made (eg listing of ecosystems and species), or
because the control provisions are unenforceable until such time as the relevant list has
been produced (exemptions of alien species). The absence of guidelines is a possible
constitutional problem (there are Constitutional Court cases that have suggested that the
delegation by the legislature of wide discretionary power to make subordinate legislation
98
Section 89.
99
Section 94.
100
Section 95.
101
Section 102. Offences are stipulated in s 101.
102
See below, 277.

is unacceptable, and that this discretion should be delegated subject to stated guidelines
or criteria within which the power should be exercised).103
4. Protected areas
4.1 National Environmental Management: Protected Areas Act 57 of 2003
This Act was part of the same legislative development process as the Biodiversity Act. In
short, it aimed to consolidate and rationalise all the protected areas legislation in South
Africa. Because national parks are excluded by the Constitution from concurrent national
and provincial legislative competence, and legislation of exclusive national competence is
enacted by a different process from legislation of concurrent competence, all the provisions
relating to national parks had to be excised from the Act when it was enacted and these
were the subject of an amendment Act that simply reinserted all these provisions. This
is significant because versions of the Act located on the internet may be the unamended
Act — ie missing the national parks provisions.
The objectives of the Act are:
‘(a) to provide, within the framework of national legislation, including the National
Environmental Management Act, for the declaration and management of pro-
tected areas;
(b) to provide for co-operative governance in the declaration and management of
protected areas;
(c) to effect a national system of protected areas in South Africa as part of a strategy
to manage and conserve its biodiversity;
(d) to provide for a representative network of protected areas on state land, private
land and communal land;
(e) to promote sustainable utilisation of protected areas for the benefit of people, in a
manner that would preserve the ecological character of such areas;
(f) to promote participation of local communities in the management of protected
areas, where appropriate; and
(g) to provide for the continued existence of South African National Parks.’104
The Act provides that the state must act as trustee of South Africa’s protected areas and
implement the Act in partnership with ‘the people’.105
A critical aspect of the Act is Chapter 2, which provides for a system of protected areas.
According to s 9, the system of protected areas in South Africa consists of the following
kinds of protected areas:
‘(a) special nature reserves, national parks, nature reserves (including wilderness
areas) and protected environments;
(b) world heritage sites;
103
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) and Janse van Rensburg NO v Minister of Trade
and Industry NO 2001 (1) SA 29 (CC).
104
Section 2. Reference in para (g) to ‘South African National Parks’ is not to the parks themselves, but to
the organisation (which used to be called the South African National Parks Board) which controls national
parks.
105
Section 3.

(c) marine protected areas;

(d) specially protected forest areas, forest nature reserves and forest wilderness areas
declared in terms of the National Forests Act;106 and
(e) mountain catchment areas declared in terms of the Mountain Catchment Areas
Act.’107
The Minister is required to maintain a register of protected areas,108 and is empowered
to prescribe norms and standards for the achievement of any of the objectives of the Act,
indicators to measure compliance with these norms and standards and reporting require-
ments.109 Certain types of protected areas — world heritage sites; marine protected areas;
specially protected forest areas, forest nature reserves or forest wilderness areas; and
mountain catchment areas110 — are only partially regulated by this Act, since other legis-
lation (discussed below) is pertinent to them.
Chapter 3 covers the declaration of protected areas. Section 17 sets out the purposes for
declaration of protected areas:
‘(a) to protect ecologically viable areas representative of South Africa’s biological
diversity and its natural landscapes and seascapes in a system of protected areas;
(b) to preserve the ecological integrity of those areas;
(c) to conserve biodiversity in those areas;
(d) to protect areas representative of all ecosystems, habitats and species naturally
occurring in South Africa;
(e) to protect South Africa’s threatened or rare species;
(f) to protect an area which is vulnerable or ecologically sensitive;
(g) to assist in ensuring the sustained supply of environmental goods and services;
(h) to provide for the sustainable use of natural and biological resources;
(i) to create or augment destinations for nature-based tourism;
(j) to manage the interrelationship between natural environmental biodiversity,
human settlement and economic development;
(k) generally, to contribute to human, social, cultural, spiritual and economic devel-
opment; or
(l) to rehabilitate and restore degraded ecosystems and promote the recovery of
endangered and vulnerable species.’
The chapter is then divided into different parts dealing with different types of protected
areas and the procedure whereby such areas are declared. Part 1 deals with special nature
reserves, the purpose of which will be to protect highly sensitive, outstanding ecosys-
tems, species or geological or physical features in the area; and to make the area primar-
106
Act 84 of 1998. See below, 121.
107
Act 63 of 1970. See below, 122.
108
Section 10. In GN 1051 in GG 30442 of 9 November 2007, the Minister published the internet link to the
Register of Protected Areas as http://gis.deat.gov.za/paregister.
109
Section 11.
110
Only Chapters 1 and 2 of the Protected Areas Act apply to these protected areas, with the addition of s 48
for the three forest protected areas and marine protected areas (ss 13–16). Section 48 deals with mining
and prospecting.

ily available for scientific research or environmental monitoring.111 National parks, dealt
with in Part 2, may be declared in order to:
‘(a) protect—
(i) the area if the area is of national or international biodiversity importance or
is or contains a viable, representative sample of South Africa’s natural sys-
tems, scenic areas or cultural heritage sites; or
(ii) the ecological integrity of one or more ecosystems in the area;
(b) prevent exploitation or occupation inconsistent with the protection of the ecologi-
cal integrity of the area;
(c) provide spiritual, scientific, educational, recreational and tourism opportunities
which are environmentally compatible; and
(d) contribute to economic development, where feasible.’112
National parks were previously regulated by the National Parks Act,113 which was repealed
by the new Protected Areas Act. The existing national parks, such as the world-renowned
Kruger National Park, were proclaimed under this legislation or its predecessors and they
remain national parks under the new legislation.
Part 3 covers nature reserves. Their purpose is to protect the area if the area has signifi-
cant natural features or biodiversity, is of scientific, cultural, historical or archaeological
interest, or is in need of long-term protection for the maintenance of its biodiversity;
to provide for a sustainable flow of natural products and services to meet the needs of
a local community; to enable the continuation of such traditional consumptive uses as
are sustainable; or to provide for nature-based recreation and tourism opportunities.114
Nature reserves may be designated as wilderness areas in terms of s 26.
Protected environments are dealt with by Part 4. This type of protected area is declared
to regulate the area as a buffer zone for the protection of a special nature reserve, world
heritage site or nature reserve; to enable owners of land to take collective action to con-
serve biodiversity on their land and to seek legal recognition therefor; to protect the area
if the area is sensitive to development due to its biological diversity, natural character-
istics, scientific, cultural, historical or archeological value, scenic value, or provision of
environmental goods and services; to protect a specific ecosystem outside of a special
nature reserve, world heritage site or nature reserve; to ensure that the use of natural
resources in the area is sustainable; or to control change in land use in the area if the area
is earmarked for declaration as, or inclusion in, a nature reserve.115
In the case of each of the protected areas envisaged by the Act, provision is made for
the process whereby these areas are deproclaimed, which is a welcome inclusion as this
should be formalised to ensure that it cannot be too easily done. The rest of the chapter
deals with important consultation and public participation matters concerning the decla-
ration of protected areas as well as other technical matters.
111
Section 18.
112
Section 20.
113
Act 57 of 1976.
114
Section 23.
115
Section 28.

Chapter 4 follows, addressing the management of protected areas. This chapter applies
only to special nature reserves, national parks, nature reserves and protected environ-
ments. The Minister is required to assign a management authority for protected areas,116
and such authority is required to submit a management plan for approval by the relevant
authority within twelve months.117 There are sections dealing with management criteria
and the content of management plans, and s 42 deals with co-management, allowing the
management authority to enter into co-management agreements with ‘another organ of
state, a local community, an individual or other party’ which allows for the delegation of
powers by the management authority to the other party to the agreement; the apportion-
ment of any income generated from the management of the protected area or any other
form of benefit sharing between the parties; the use of biological resources in the area;
access to the area; occupation of the protected area or portions thereof; development of
economic opportunities within and adjacent to the protected area; development of local
management capacity and knowledge exchange; financial and other support to ensure
effective administration and implementation of the co-management agreement; and any
other relevant matter.
One of the most controversial aspects of the Act, not necessarily on paper but from the
perspective of the perceived motive behind the Act, is the management of national parks.
The Minister was originally required to assign the management of a national park to South
African National Parks (SANParks) or another suitable person, organisation or organ of
state.118 The controversy arose from the anticipation from some quarters that there would
be ‘cherry-picking’ of provincial protected areas as national parks by SANParks through
the declaration of such protected areas as national parks under the Act. This would be
followed by the assignment of management of the parks to SANParks, with the result
that the provincial bodies who managed before the declaration as national park would be
replaced. This, if it transpired, would have a devastating effect on conservation efforts in
the provinces, especially the very important work being done outside of protected areas.
This is because the income derived from the ‘flagship’ provincial protected areas (such as
Hluhluwe-Mfolozi in KwaZulu-Natal) is used to fund conservation in the province gener-
ally, not just in protected areas. Apparently, this was not the intention of the legislation,
but the original provision did allow this to happen. Provincial concerns about this during
the consultative process leading up to the passing of the Act were seemingly ignored.119
The situation, if it is still a concern, was exacerbated in 2009, when the Act was amended
to remove the choice of management between SANParks and another suitable person,
organisation or organ of state. The new s 38(aA) removes the choice, requiring that the
management of a national park must be assigned to SANParks. There appeared to be no
public concerns expressed about this amendment, but should protected areas that are not
currently national parks, and are currently managed by provincial conservation bodies,
be declared to be national parks, they will have to be managed by SANParks.
116
Section 38.
117
Section 39.
118
Section 38(1)(b).
119
See, for example, Fiona Macleod ‘Battle over lucrative reserves’ (9 October 2002) Mail & Guardian. I have
also heard concerns along these lines from several provincial officials.

Part 2 of Chapter 4 introduces monitoring and supervision provisions, allowing the

Minister to set performance indicators which management authorities must meet, and
s 44 provides for the termination of a mandate to manage a protected area if the authority
is not meeting the necessary requirements. This will happen only if the authority fails to
comply with a directive requiring it to measure up.
Access to protected areas is covered in Part 3. Subject to certain stated exceptions,
special nature reserves are off limits to human access.120 Access to nature reserves,
national parks and world heritage sites is allowed by written permission of the manage-
ment authority in question.121 Section 47 prohibits the flying of an aircraft over a special
nature reserve, national park or world heritage site at an altitude of less than 1500 feet
over the highest point in the site.
The controversial issue of prospecting and mining in protected areas, as well as other
restrictions, is dealt with in Part 4 of Chapter 4. Section 48 prohibits (without any excep-
tions indicated in the Act and ‘despite other legislation’) commercial prospecting or min-
ing activities in a special nature reserve, national park or nature reserve; in a protected
environment without the written permission of the Minister and the Cabinet member
responsible for minerals and energy affairs; or in a world heritage site, specially protected
forest area, forest nature reserve and forest wilderness area. The Minister, after consulta-
tion with the Cabinet member responsible for minerals and energy, is required by s 48(2)
to review all mining activities which were lawfully conducted in the areas mentioned
above immediately before this section took effect, and, may, in relation to these activities
as well as in relation to mining activities conducted in these areas which were declared
as such after the commencement of this section, prescribe conditions under which those
activities may continue in order to reduce or eliminate the impact of those activities
on the environment or for the environmental protection of the area concerned. This is
a somewhat perplexing provision since it seemingly prohibits prospecting and mining
activities and then allows them subject to conditions in the same section.
Other provisions in Part 4 deal with regulatory powers to restrict activities, commer-
cial and community activities in nature reserves and world heritage sites, the regulation
of or restriction on development in protected natural environments, and the power of
management authorities to make internal rules and to respect certain rights (such as res-
titution claims).
Chapter 5 deals with South African National Parks, its powers, functions etc.
The remainder of the Act is relatively technical, Chapter 6 dealing with the acquisi-
tion of rights in land, chapter 7 with administration of the Act, Chapter 8 with offences
and penalties, and miscellaneous issues being covered in Chapter 9. The Act repeals
the National Parks Act,122 the Lake Areas Development Act,123 and the sections of the
Environment Conservation Act that provided for special nature reserves and protected
natural environments.124
120
Section 45.
121
Section 46.
122
Act 57 of 1976, except s 2(1) and the 1st Schedule, which relate to existing national parks.
123
Act 39 of 1975.
124
Sections 16, 17 and 18 of Act 73 of 1989.

An amendment to the Act in 2009 appended a schedule (Schedule 2), which defines
the geographical areas of the national parks. The schedule may be amended by the
Minister.125
The Minister has made regulations for the proper administration of special nature
reserves, national parks and world heritage sites.126 This is a comprehensive set of regula-
tions dealing with the following:
●● The protected areas register — management authorities are required to provide infor-
mation to the Minister detailing all protected areas under their control;
●● Various prohibitions, such as the prohibition of feeding or disturbing species or speci-
mens and removal of plant material, littering and so on;
●● The regulation of sustainable use of biological resources and the rights of such use;
●● Access to the protected areas;
●● Commercial activities within national parks and world heritage sites;
●● Activities requiring authorisation, such as conducting of tours and research;
●● Use of water areas, land and airspace within the protected areas, such as for recre-
ation;
●● Community-based natural resource utilisation;
●● The establishment of advisory committees;
●● Norms and standards in respect of management plans;
●● Bioprospecting;
●● Issues relating to penalties and enforcement.
Many of the regulations are similar in focus to the regulations under the National Parks
Act which dealt with issues such as prohibited activities, admission and so forth. The
regulations do, however, reflect modern developments in conservation thinking in South
Africa in their coverage of issues like sustainable use of resources within protected areas,
community aspects and bioprospecting.
In 2010, the Minister of Environmental Affairs released a draft policy on buffer zones
for National Parks.127 A buffer zone is ‘an area surrounding a national park which has
complementary legal and management restrictions placed on its use and development,
aimed at providing an extra layer of protection to the integrity of the national park. This
should include the immediate setting of the national park, important views and other
areas or attributes that are functionally important as a support means to the national
park and its protection. A buffer zone may be established around a national park when
considered necessary for the proper conservation and effective protection of the national
park in achieving its objectives.’ It is envisaged that the policy will lead to legislation in
order to give effect to the goals set out in the policy.
125
Section 20(6).
126
GN R1061 in GG 28181 of 28 October 2005.
127
GN 170 in GG 32981 of 5 March 2010. At the time of writing, the final policy had not yet appeared.

4.2 Other protected areas

World heritage sites
The World Heritage Convention Act128 provides for the implementation of the World Heri-
tage Convention in South Africa. The Act deals with the establishment and recognition of
such sites, management authorities and matters related to management of world heritage
sites (including the requirement of integrated management plans) and related issues.
There are eight World Heritage Sites in South Africa (year of nomination in brackets):
●● Fossil Hominid Sites of Sterkfontein, Swartkrans, Kromdraai, and Environs (1999,
2005)
●● Greater St Lucia Wetland Park (1999)
●● Robben Island (1999)
●● uKhahlamba/Drakensberg Park (2000)
●● Mapungubwe Cultural Landscape (2003)
●● Cape Floral Region Protected Areas (2004)
●● Vredefort Dome (2005)129
●● Richtersveld Cultural and Botanical Landscape (2007)
Chapters 1 and 2 of the Protected Areas Act apply to World Heritage Sites.
Mountain catchment areas

South Africa’s runoff ratio is low. Runoff from mountain catchments is the main source of
most rivers in the country,130 therefore it is desirable to have legislation to ensure optimal
runoff in these areas. The Mountain Catchment Areas Act131 is aimed at the conservation,
use, management and control of land situated in declared mountain catchment areas.132
Management guidelines apply within these areas which relate to issues such as land use
and control of vegetation.133 It has been suggested that there ought to be standardised
conservation measures for all land situated within catchments.134 Such a measure, it has
been contended, would eliminate the need for declared mountain catchment areas, yet the
Act could still conceivably be used for areas which require special treatment.
Marine protected areas

The Marine Living Resources Act135 provides for the declaration of marine protected
areas.136 The purpose of such declaration is for the protection of fauna and flora or a
128
Act 49 of 1999.
129
See the Unesco World Heritage website for the full list of world heritage sites, including links to informa-
tion and photographs of the individual sites: http://whc.unesco.org/en/list/ (accessed 28 March 2011).
130
MA Rabie ‘The conservation of mountains in South African law’ 1989 SA Public Law 213 at 214.
131
Act 63 of 1970.
132
Long title.
133
JH O’Keeffe, M Uys & MN Bruton ‘Freshwater systems’ in RF Fuggle & MA Rabie Environmental
Management in South Africa (1992) at 303.
134
Ibid.
135
Act 18 of 1998.
136
Section 43.

particular species of fauna or flora and the physical features on which they depend; to
facilitate fishery management by protecting spawning stock, allowing stock recovery,
enhancing stock abundance in adjacent areas, and providing pristine communities for
research; or to diminish any conflict that may arise from competing uses in that area. It
is prohibited for any person, in any marine protected area, without permission137 to fish
or attempt to fish; take or destroy any fauna and flora other than fish; dredge, extract
sand or gravel, discharge or deposit waste or any other polluting matter, or in any way
disturb, alter or destroy the natural environment; construct or erect any building or other
structure on or over any land or water within such a marine protected area; or carry on
any activity which may adversely impact on the ecosystems of that area.
Four marine protected areas have been declared:
●● Pondoland138
●● Table Mountain National Park139
●● Bird Island140
●● Aliwal Shoal141
●● Stilbaai142
The substance of the regulations declaring the individual areas differ from one another,
but they deal with matters such as objectives and boundaries, as well as zones within the
boundaries (for example, sanctuary zones and controlled zones), prohibited activities,
research and commercial use. The declaration of marine protected areas is to be wel-
comed, given the stress on our marine resources, but the proof of the pudding, as always,
will be how the law is enforced, since it is not possible to fence off marine protected areas.
Chapters 1 and 2 and s 48 of the Protected Areas Act are applicable to marine protected
areas.
Protected areas in terms of the National Forests Act143

In terms of the National Forests Act, the Minister of Water Affairs and Forestry may
declare a State forest or part of it; or purchase or expropriate land and declare it; or at the
request of or with the consent of a landowner declare it to be a specially protected area in
one of the following categories: a forest nature reserve; forest wilderness area144 or ‘any
other type of protected area which is recognised in international law or practice’.145 Such
declaration may be made only if the Minister is of the opinion that the area is not already
137
Such permission to be given only where necessary for the management of the area: s 43(3).
138
GN 694 in GG 26430 of 4 June 2004.
139
GN 695 in GG 26431 of 4 June 2004.
140
GN 696 in GG 26432 of 4 June 2004.
141
GN 697 in GG 26433 of 4 June 2004.
142
143
Act 84 of 1998.
144
The difference, if any, between forest nature reserves and forest wilderness areas is not provided for in the
Act.
145
Section 8(1).

adequately protected in terms of other legislation.146 The Act prescribes a consultative

procedure for the declaration of protected areas.147
No person may cut, disturb damage or destroy any forest produce in, or remove or
receive any forest produce from, a protected area, except in specified circumstances.148
The Act also provides for the procedure for revocation of the declaration as protected
area, which requires parliamentary approval.149 Management of protected areas is also
provided for.150
Chapters 1 and 2 and s 48 of the Protected Areas Act are applicable to the forest pro-
tected areas.
Provincial reserves
In terms of the Nature Conservation Ordinances of the erstwhile four provinces in South
Africa, the following protected areas could be established:
●● Cape Province: provincial,151 local152 and private153 nature reserves
●● Natal: commercial game reserves, game parks, game reserves, national parks, nature
reserves, private nature reserves and private wildlife reserves154
●● Orange Free State: provincial nature reserves and private nature reserves155
●● Transvaal: nature reserves156
Generally speaking, there are prohibitions of varying degrees in any of these areas relat-
ing to the killing, injuring or disturbing of animals or picking of indigenous plants.157 In
addition to the above, protected areas of various kinds were established in terms of the
conservation legislation of the erstwhile TBVC states and self-governing territories.158
Islands
In terms of the Sea Birds and Seals Protection Act,159 the Minister of Environmental
Affairs is empowered to insert into or delete from schedules to the Act the name or
description of any of the islands, which are controlled as sanctuaries and breeding stations
146
Section 8(2).
147
Section 9.
148
Section 10(1).
149
Section 10(2).
150
Section 11.
151
Proclaimed by the Administrator: s 6 of the Nature and Environmental Conservation Ordinance 19 of 1974
(Cape).
152
Proclaimed by a local authority in terms of s 7(1).
153
Established by an owner of land, with the approval of the Administrator (s 12).
154
All defined in s 1 of the Nature Conservation Ordinance 15 of 1974 (Natal).
155
Both declared by the Administrator, the latter on application by an owner of land: Nature Conservation
Ordinance 8 of 1969 (Orange Free State).
156
Section 14 of the Nature Conservation Ordinance 12 of 1983.
157
Sections 15(1) and 60 (Natal); ss 35 and 36 (OFS); s 19(1) (Transvaal).
158
See Willemien du Plessis ‘Integration of existing environmental legislation in the provinces’ (1995) 2
SAJELP 23 at 28–33 for details of the relevant legislation.
159
Act 46 of 1973.

for sea birds.160 It is an offence for any person to set foot or remain upon any island; to
pursue or shoot at or wilfully disturb, kill or capture any sea bird or seal upon any island
or within the territorial waters or fishing zone or along the coast of the Republic between
the low- and high-water marks; or wilfully damage the eggs of any sea bird upon any
island or collect upon or remove from any island any such eggs or feathers of any sea
bird or any guano, except in the performance of duties under the Act or with the requisite
authority.161
There is, under the Marine Living Resources Act, a policy on the management of seals,
seabirds and shorebirds in South Africa.162 The objectives of the policy are to facilitate
and ensure management of conservation of seals, seabirds and shorebirds; co-operative
management; sustainable, non-consumptive use of seals, seabirds and shorebirds;
research and monitoring; management of adverse interactions; and implementation of
international obligations.
Conservancies
A conservancy is a group of farms whose owners have combined resources for the
improved conservation and well-being of wildlife163 inhabiting the area.164 The system
has been extended to include urban conservancies. Conservancies, which are controlled
and financed by the land owners over whose property they extend, have no legal nature
conservation status.165
Biosphere reserves
Biosphere reserves are internationally designated protected areas which are managed
to demonstrate the value of conservation.166 They are also without legal status in South
Africa, but have been developed by the Natal Parks Board to encompass co-operative
management of natural resources by the Board and neighbours of the reserve.167 There
are also biosphere reserves elsewhere in the country, with some prominent reserves such
as Kogelberg in the Western Cape.
Natural heritage sites

Natural heritage sites are important natural sites which are included under the South Afri-
can Natural Heritage Programme. They are not legislatively created. They are voluntarily
160
Section 14. There are 46 islands in Schedule 1 and two in Schedule 2.
161
Section 3. Further control can be exercised by way of regulations (s 11).
162
163
All desirable life forms including plants and animals.
164
Natal Parks Board definition (see J Hanks & PD Glavovic ‘Protected areas’ in Fuggle & Rabie (n 133) at
711). The concept originated in Natal and has spread to the Transvaal and Orange Free State.
165
Hanks & Glavovic (n 164) at 711.
166
Hanks & Glavovic (n 164) at 697. They are approved by the UNESCO Man and Biosphere International
Co-ordinating Council.
167
Hanks & Glavovic (n 164) at 711.

entered into by landowners who are given advice by the Department of Environmental
Affairs, with a view to their protection.168
Other
Various other areas catered for by a number of different pieces of legislation can be regarded
as protected areas of a kind. They are limited development areas,169 land subject to military
control under the Defence Act170 and the various coastal zones under protection.171
5. Conservation of components of biodiversity

All components of biodiversity would be regulated by the Biodiversity Act and, if they
were in protected areas, by the Protected Areas Act. There are other enactments, how-
ever, that address specific components of biodiversity, including ecosystems.
5.1 Wild animals

Other than the provincial legislation outlined above, there are no specific statutory
instruments that regulate the conservation of wild animals (which would include mam-
mals, birds, reptiles, amphibians and fish). As pointed out above, conservation outside of
protected areas is regulated by means of control of hunting of game (largely mammals
and some birds) and the requirement of authorisation for gathering, killing etc of other
animals.172 Marine species and endangered species are discussed under separate headings
below.
5.2 Plants
It is estimated that nearly three-quarters of the subcontinent’s plant species are protected
in the various types of protected areas recognised by South African law.173 Plants are
protected from any kind of damage or removal in such areas.
Outside of protected areas, the various provincial nature conservation ordinances and
other nature conservation legislation discussed above apply to conservation of indig-
enous plants in much the same way as for wild animals. The gathering of plants growing
in the wild is thus regulated.
The National Forests Act174 provides for sustainable forest management, special meas-
ures to protect forests and trees and the use of forests generally. A forest is defined as a
natural forest, a woodland and a plantation; the forest produce175 in it; and the ecosystems
168
Ibid.
169
Declared in terms of s 23 of the Environment Conservation Act 73 of 1989.
170
Act 44 of 1957. See Hanks & Glavovic (n 164) at 708, who state that ‘it is declared policy that [such land]
be managed scientifically with a view to nature conservation’ as an objective secondary to military ones.
171
See the National Environmental Management: Integrated Coastal Management Act 24 of 2008. See below,
229ff.
172
See discussion of provincial legislation above, 100–1.
173
NJJ Olivier, AG Myakayaka & RL Richards ‘Indigenous plants’ in Strydom & King (n 14) at 357.
174
Act 84 of 1998.
175
Defined in s 1 to mean anything which appears or grows in a forest, including any living organism, and any
product of it, in a forest; and inanimate objects of mineral, historical, anthropological or cultural value.

which it makes up.176 The Act prohibits the cutting, disturbing, damaging or destroying
of any indigenous living tree in, or the removal or receipt of any such tree from, a natural
forest except in terms of a licence or exemption.177 A natural forest is a group of indigenous
trees whose crowns are largely contiguous; or which have been declared by the Minister to
be a natural forest.178 The Act also provides for the declaration of protected areas, discussed
above. Further protection is provided by the power of the Minister to declare protected
trees. The Minister may declare a particular tree; a particular group of trees, a particular
woodland,179 or trees belonging to a particular species, to be a protected tree, group of
trees, woodland or species.180 The Minister has declared several (47) species of trees to be
protected.181 No person may cut, disturb, damage, destroy or remove any protected tree; or
collect, remove, transport, export, purchase, sell, donate or in any other manner acquire or
dispose of any protected tree, except under a licence granted by the Minister.182 The Minis-
ter is also given the power to declare controlled forest areas in order to control and remedy
deforestation.183 The Minister has declared several trees (individual trees, not species) to be
‘Champion Trees’,184 but most of these are designated as such because of historical reasons,
not for conservation reasons, and many of them are not indigenous trees. It would, there-
fore, possibly be better for this power to be included under heritage legislation, rather than
under the forests conservation legislation.
The Act also provides for the use of State forests, including recreational, educational,
spiritual or cultural use, commercial use and community forestry.185 An important aspect
of the Act is the provision for community forestry agreements, which can be entered into
between communities and the Minister, in order for the community to do anything in the
forest for which a licence would ordinarily be required or for purposes of managing the
forest. This is an important component of the general thrust of new biodiversity legisla-
tion allowing for improved access to resources by all sectors of the population.
Regulations under the Act provide for the following: research into sustainable forest
management; the calculation of measures for forest produce and products; requirements
for licences; the protection of trees and forests; the collection of data; servitudes in
state forests; community forestry; issues relating to forest officers and inspections; and
offences and penalties.186
176
Section 1.
177
Section 7(1).
178
Section 1.
179
‘Woodland’ is defined in s 1 as a group of indigenous trees which are not a natural forest, but whose crowns
cover more than five per cent of the area bounded by the trees forming the perimeter of the group.
180
Section 12(1). Such declaration to be made only if the Minister is of the opinion that the tree, group of
trees, woodland or species is not already adequately protected in terms of other legislation.
181
The list appears to be published annually (starting in 2006, although there appeared not to have been a
notice in 2008) with little or no change in the list. The most recent list was published in GN 835 in GG
33566 of 23 September 2010.
182
Section 15.
183
Section 17.
184
The most recent list of Champion Trees was published in GN 890 in GG 33614 of 15 October 2010.
185
Chapter 4 of the Act.
186
GN R466 in GG 32185 of 29 April 2009.

The various prohibitions outlined above are reinforced by provisions relating to

offences and penalties, which distinguish between different categories of offences and
provide different maximum sentences for different categories.187
5.3 Marine resources

Not only is South Africa diverse in respect of terrestrial species: according to the White
Paper,188
South Africa’s marine life is similarly diverse, partly as a result of the extreme contrast between
the water masses on the East and West Coast. Three water masses — the cold Benguela current,
the warm Agulhas current, and oceanic water — make the region one of the most oceanographi-
cally heterogeneous in the world.
Not surprisingly, therefore, South Africa has a very important fishing industry. The fish-
ing industry in 2007 contributed approximately R4,5 billion to gross domestic product
(about 2 percent in total), employing some 36 500 people.189 The most valuable com-
mercial fishery is hake, amounting to more than 40 percent of the total landed value of
all fisheries, whilst the small pelagic (anchovy and sardine) fisheries land the most fish
by weight.190
There is clearly a need for marine resources to be utilised in a sustainable fashion in
order for the fishing industry to remain viable. It is important, therefore, that there be
effective legislation dealing with the conservation of marine resources.
Access to and conservation of marine resources, which includes sea fisheries, is regu-
lated by the Marine Living Resources Act.191 According to the long title of the Act, the
Act’s objectives are to provide for the conservation of the marine ecosystem; the long-
term sustainable utilisation of marine living resources and the orderly access to exploita-
tion, utilisation and protection of certain marine living resources; and for these purposes
to provide for the exercise of control over marine living resources in a fair and equitable
manner to the benefit of all the citizens of South Africa; and to provide for matters con-
nected therewith. The objectives and principles of the Act are set out more specifically in
s 2, which provides that the Minister and any organ of state in exercising any power under
the Act shall have regard to the following objectives and principles:
‘(a) The need to achieve optimum utilisation and ecologically sustainable develop-
ment of marine living resources;
(b) the need to conserve marine living resources for both present and future genera-
tions;
(c) the need to apply precautionary approaches in respect of the management and
development of marine living resources;
(d) the need to utilise marine living resources to achieve economic growth, human
resource development, capacity building within fisheries and mariculture
187
Chapter 7 of the National Forests Act.
188
White Paper on the Conservation and Sustainable Use of South Africa’s Biological Diversity (n 7).
189
B McLean & JI Glazewski ‘Marine systems’ in Strydom & King (n 14) 455 at 464.
190
Ibid at 463–4.
191
Act 18 of 1998.

branches, employment creation and a sound ecological balance consistent with

the development objectives of the national government;
(e) the need to protect the ecosystem as a whole, including species which are not tar-
geted for exploitation;
(f) the need to preserve marine biodiversity;
(g) the need to minimise marine pollution;
(h) the need to achieve to the extent practicable a broad and accountable participation
in the decision-making processes provided for in this Act;
(i) any relevant obligation of the national government or the Republic in terms of any
international agreement or applicable rule of international law; and
(j) the need to restructure the fishing industry to address historical imbalances and
to achieve equity within all branches of the fishing industry.’
These principles must all be taken into account when decisions are taken to allocate fish-
ing rights, but the last principle — relating to equity or transformation — has primacy in
this regard, as held in the case of Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism.192 In that case, the Constitutional Court took into account s 2 in con-
junction with s 18(5) of the Act, which requires the Minister, in granting any fishing right,
in order to achieve the objectives contemplated in s 2, to have particular regard to the
need to permit new entrants, particularly those from historically disadvantaged sectors
of society. The court’s conclusion was that the principle in s 2(j) was the only principle to
be given special attention.
The Act provides for various institutional and administrative matters in Chapter 2.
Chapter 3 deals with the very important issue of fisheries management. Fisheries planning
includes the determination of the total allowable catch, the total applied effort or a combina-
tion of the two.193 The total allowable catch is the maximum quantity of fish of individual
species or groups of species made available annually, or during such other period of time as
may be prescribed, for combined recreational, subsistence, commercial and foreign fishing
in terms of s 14; while the total applied effort is the maximum number of fishing vessels, the
type, size and engine power thereof or the fishing method applied thereby for which fishing
vessel licences or permits to fish may be issued for individual species or groups of species,
or the maximum number of persons on board a fishing vessel for which fishing licences
or permits may be issued to fish individual species or groups of species.194 The Minister is
required to determine the portions of the total allowable catch, the total applied effort, or
a combination thereof, to be allocated in any year to subsistence, recreational, local com-
mercial and foreign fishing, respectively.195 Also related to planning are provisions relating
to fishing management areas, emergency measures and priority fishing areas.
One of the most important aspects of the Act, clearly, is the allocation of fishing rights.
This is addressed by s 18, which provides that no person shall undertake commercial
fishing or subsistence fishing, engage in mariculture or operate a fish processing estab-
lishment unless a right to undertake or engage in such an activity or to operate such an
192
2004 (4) SA 490 (CC).
193
Section 14(1).
194
Section 1.
195
Section 14(2).

establishment has been granted to such a person by the Minister. Such decision may
be based on an environmental impact assessment196 and the rights may be allocated for
any stipulated period of no more than 15 years.197 Subsistence and recreational fishing
also require permits.198 Other licences required are foreign fishing licences and high sea
licences.199 The Chapter also deals with various technical and procedural issues relating
to rights for commercial fishing.
The allocation of fishing rights is a highly complex endeavour which is fraught with
controversy, as indicated by the large number of cases which the courts have had to
consider in relation to such allocation.200 Bearing in mind that the relevant authorities not
only have to take into account the universal considerations relating to sustainability of the
fishery, the ability of the applicant to use the right and related issues, but, as noted above,
must also pay special regard to issues relating to equity, it is consequently not surprising
that many people will be unhappy with decisions made. The Scenematic Fourteen case201
is a good illustration of the determination process adopted in one particular fishery.
Marine protected areas are regulated by Chapter 4 and are discussed above.202 In
addition, the Act prohibits certain activities and gear, including fishing methods using
explosives or poison,203 and driftnet fishing.204 Fishery Control Officers, appointed in
terms of the Act, have a variety of enforcement powers in order to ensure compliance
with the Act’s provisions.205 Chapter 7 addresses judicial matters, including offences and
penalties. Some of the penalties provided for in the Act are very high — certain offences
attract a maximum fine of five million rand.
There is a comprehensive set of general regulations,206 which deals with issues such
as closed seasons, closed areas, prohibited gear, size and mass limits, mariculture, land-
ing, transportation, delivery, receipt, processing and marketing of fish and fish products
and similar concerns. In addition to the general regulations, notable regulations include
regulations for the protection of wild abalone,207 and regulations for the management of
boat-based whale watching and protection of turtles.208 There are also several policies:
the Policy on Boat-based Whale and Dolphin Watching;209 a Policy on White Shark Cage
196
Section 18(3).
197
Section 18(6).
198
Sections 19 and 20 respectively.
199
Sections 39 and 41 respectively.
200
See, for example (and this is an incomplete list): Bato Star (supra); Foodcorp (Pty) Ltd v Deputy Director-
General, Department of Environmental Affairs And Tourism: Branch Marine and Coastal Management
2006 (2) SA 191 (SCA); Minister of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd
2005 (6) SA 182 (SCA); Minister of Environmental Affairs and Tourism v Pepper Bay Fishing (Pty) Ltd
2004 (1) SA 308 (SCA).
201
See above note.
202
See 121–22.
203
Section 44.
204
Section 47.
205
Chapter 6.
206
Originally promulgated in GN R1111 in GG 19205 of 2 September 1998, the regulations have been
amended frequently.
207
208
GN R725 in GG 31212 of 4 July 2008.
209
GN 722 in GG 31209 of 4 July 2008.

Diving and associated regulations;210 and the Policy for the Development of a Sustainable
Marine Aquaculture Sector in South Africa.211 The latter revolves around considerations
of poverty alleviation and creation of employment in the aquaculture sector, whilst ensur-
ing minimal adverse impact on the environment. The policy envisages eventual amend-
ment of the Act to incorporate a chapter on aquaculture.
As with any marine activities, enforcement is a big challenge and this challenge is
not easily met if there are resource constraints. There have been recent reports that the
enforcement of this Act is being hamstrung by the fact that the vessels required by the
enforcement personnel are without fuel and funds to pay for more.
On the other hand, significant efforts are being made to address perlemoen (abalone)
poaching, which is a big problem threatening the future of these organisms, and there
have been several notable convictions and sentences imposed.212 In 2006, for example,
it was reported that the Department’s national anti-poaching drive, Operation Orca, had
seized marine products to the value of R38 million since August 2005, when the project
commenced.213
In an interesting case decided in the Court of Appeals (2nd Circuit) in the USA, the
court was deciding on whether South Africa was entitled to compensation for significant
numbers of lobster that had been illegally harvested in South African waters and exported
to the USA. Although the case involved US legislation which is not the focus of this book,
what is interesting is that the court decided that South Africa did have a property interest
in the lobster due to the provision in the Marine Living Resources Act allowing the South
African authorities to seize (and then sell) illegally harvested marine resources.214
5.4 Endangered species

One of the most prominent international environmental issues is that of extinction of
species, an all too frequent occurrence this century. Wild animals are regarded either as
threatened or safe. Threatened animals are those which are considered to be rare, vulner-
able or endangered in their natural habitats. Endangered species are those in danger of
extinction and whose survival is unlikely if the causal factors continue to operate. Vul-
nerable species are those which are believed likely to move into the endangered category
in the near future if the causal factors continue to operate. Rare species are species with
small populations that are not at present endangered or vulnerable, but are at risk.215
South Africa is the third most biologically diverse country in the world, but unfortu-
nately a number of these species are threatened. According to the White Paper on the
Conservation and Sustainable Use of South Africa’s Biological Diversity, 3435 (15%) of
South Africa’s plant species, 102 (14%) of bird, 72 (24%) of reptile, 17 (18%) of amphibian,
210
GN 723 and GN 724 respectively in GG 31210 of 4 July 2008.
211
212
Most of these are magistrates’ courts decisions, so there are few judgments to which to refer. There are
some High Court judgments, however: see Shannon Hoctor & Michael Kidd ‘Punishing perlemoen poach-
ing — Developments both recent and possibly future?’ (2005) 26 Obiter 398.
213
SAPA 6 June 2006.
214
United States of America v Bengis 2011 WL 9372 (2d Cir. 2011).
215
These categories are taken from the IUCN (World Conservation Union) Red Data Books of threatened spe-
cies. There are several South African Red Data publications, dealing with plants, birds, small mammals,
large mammals etc.

90 (37%) of mammal, and 142 (22%) of butterfly species are listed as threatened in the
South African Red Data Books.216
Protection of endangered species at present is addressed by means of their protection
within protected areas or, where this is not the case, through the variety of conserva-
tion legislation already discussed in this chapter. There are generally special provisions
dealing with species under threat. On a national level, the Biodiversity Act addresses
this in Chapter 4, and the TOPS regulations.217 The lists under the Biodiversity Act will
not be the only lists of species requiring special conservation measures, since the four
provincial ordinances, which apply in seven of the nine provinces, and the Mpumalanga
Act also have lists of species in respect of which certain actions are restricted. In the
Natal Nature Conservation Ordinance 15 of 1974, for example, a number of schedules
to the ordinance categorise specified animal and plant species as ‘protected’, ‘specially
protected’, or ‘endangered’, and these species are the beneficiaries of special protection
through certain provisions in the ordinance. In addition, there is a list of protected trees
in terms of the National Forests Act.218 Given the multiple lists, it is important that there
be consistency between the lists. Is this the case?
There would appear to be several differences, which could be important, despite
the similarities between the ordinances. If we take the wild dog as an example, this is
regarded as endangered in the draft Biodiversity Act list, the second ‘highest’ category
after critically endangered. It is ‘specially protected’ in the Natal Ordinance, ‘protected’
in the Transvaal Ordinance, and not mentioned in either of the other two Ordinances. If
we consider the hunting of wild dogs, this is prohibited by the Natal and Transvaal Ordi-
nances without a permit. In the Cape (this would apply to the new provinces of Western
and Eastern Cape) it can be hunted without a permit, provided that certain methods are
not used. Under the Orange Free State Ordinance, a landowner can freely hunt a wild dog,
as can another person with the permission of the landowner. Differences such as this one
need to be addressed if the legislation is not to be in conflict.
Internationally, one of the most important instruments for the conservation of endan-
gered species is the Convention on International Trade in Endangered Species of Wild
Fauna and Flora of 1973, commonly referred to as CITES. The objectives of CITES are to
ensure, through international co-operation, that the international trade in species of wild
fauna and flora does not threaten the conservation of the species concerned and to protect
certain endangered species from over-exploitation by means of a system of import/export
permits issued by a management authority under the control of a scientific authority.
CITES operates by categorising species into three appendices: Appendix I offers the
highest protection and prohibits (with limited exemptions) the commercial international
trade in wild-caught specimens of species threatened with extinction; Appendix II
assigns the responsibility to exporting states to control, through a permit system, such
trade in species which could become threatened with extinction if there were no such
restriction; and Appendix III lists species that have been put forward for protection by
individual states.
216
These indicate the conservation status of threatened species and ecosystems.
217
See above, 107.
218
Act 84 of 1998.

This is undoubtedly an instrument of vital importance for the conservation of wildlife

worldwide, but it may arguably have negative impacts as well as positive. A controversial
issue which has arisen recently, for instance, is the international ban on the ivory trade.
A number of southern African countries have been opposed to this move, yet, for various
reasons, have complied with it. The essential reason for the opposition is that the sustain-
able utilisation of elephants as resources is seen by many as being beneficial to conserva-
tion of the species and an important source of revenue for conservation.219
One of the ‘stand-out’ endangered species in South Africa (and internationally) is the
rhinoceros. The Minister has announced a national moratorium on the trade of individual
rhinoceros horns within South Africa.220 There are also requirements relating to the
microchipping of rhinoceros horns, both those that have already been removed and those
that are still part of living animals.221 In addition, photographing and retention of horn
shavings after microchip installation (for DNA identification purposes) is also required.
The notice also regulates the hunting, subject to permit, of rhinoceroses. These measures
have evidently had little impact since there is a crisis in rhinoceros poaching prevalent in
the country at the time of writing.222
5.5 Soil
Soil is important for a number of reasons, but it is probably as a growth medium for plants
that it is most valued. In a country with a prominent agricultural sector, such as South
Africa, soil is therefore a resource of vital importance. South Africa’s soil, however, is
under threat from a variety of sources. Among the most serious threats are soil erosion,
topsoil degradation, compaction and surface crusting; acidification; salinisation; and
infestation by weeds and pathogens.223 It has been said that soil ‘is being lost to erosion
at a frightening rate: this may well be the greatest environmental problem facing South
Africa’.224
The primary legislation aimed at addressing soil conservation is the Conservation of
Agricultural Resources Act.225 Its objects are to provide for the conservation of the natu-
ral agricultural resources of the Republic by the maintenance of the production potential
of land, by the combating and prevention of erosion and weakening or destruction of
the water resources, and by the protection of the vegetation and the combating of weeds
and invader plants.226 The Minister of Agriculture is empowered to prescribe control
219
See Michael Cowling & Michael Kidd ‘CITES and the African elephant’ in Beatrice Chaytor & Kevin R
Gray (eds) International Environmental Law and Policy in Africa (2003) 49.
220
GN 835 in GG 31301 of 8 August 2008 and GN 148 in GG 31899 of 13 February 2009.
221
222
In January 2011, the CEO of SA National Parks announced that 2010 had been one of the worst ever years
for rhinoceros poaching, with 333 rhino lost: SANParks Press Release available at http://www.sanparks.
org/about/news/default.php?id=1585 (accessed 27 February 2011).
223
E Verster et al ‘Soil’ in Strydom & King (n 14) at 294.
224
E Verster et al ‘Soil’ in Fuggle & Rabie (n 133) at 191, where a variety of statistics are furnished which
indicate the scale of the problem. Perhaps the most striking of these figures is that over three million
hectares had been rendered unproductive as a consequence of severe soil erosion and over sixty per cent of
the country’s surface area was in poor condition with respect to soil erosion.
225
Act 43 of 1983.
226
Section 3.

measures which shall be complied with by land users227 to whom they apply.228 Such
measures include, inter alia, measures relating to the cultivation of virgin soil; the uti-
lisation and protection of land which is already cultivated; the utilisation and protection
of the vegetation; and the restoration or reclamation of eroded land or land which is
otherwise disturbed or denuded.229 The Minister has prescribed certain control measures
relating to many of the considerations referred to in s 6.230
In addition, the Minister may establish a scheme in terms of which financial assistance
can be granted to land users through the payment of a subsidy for certain stated purposes,
such as the construction of soil conservation works and the restoration of eroded land.231
Section 11, furthermore, provides that the Minister may act, in relation to any of the con-
siderations for which control measures can be determined, in order to achieve the objects
of the Act.232 The owner of the relevant land is responsible for the costs of such act.233
Such act can be performed for research or demonstration purposes, in which case the
landowner will not be responsible for the costs thereof.234 If the Minister is of the opinion
that it is necessary for the restoration or reclamation of the natural agricultural resources
of any land in order to achieve the objects of the land, he may expropriate the land.235
Apart from the Minister of Agriculture, the Act envisages a number of other control
officials and bodies. The Act creates an executive officer, regional conservation com-
mittees, conservation committees and the Conservation Advisory Board.236 The execu-
tive officer237 has as his main functions the issuing of directions (primarily in respect of
control measures),238 the rendering of advice239 and the evaluation of requests or inquiries
under the Act.240 The executive officer may delegate his powers and duties to another
official (for example an inspector).241 Conservation committees are established by the
Minister for areas determined by him,242 and they have the duty of promoting the conser-
vation of natural agricultural resources within that area and advising the Department on
227
‘Land user’ is defined in s 1 as the owner of land, including:
(a) any person who has a personal or real right in respect of any land in his capacity as fiduciary,
fideicommissary, servitude holder, possessor, lessee or occupier, irrespective of whether he resides
thereon;
(b) any person who has the right to cut trees or wood on land or to remove trees, wood or other organic
material from land; and
(c) in relation to land under the control of a local authority, that local authority, but not a person who
carries on prospecting or mining activities.
228
Section 6(1).
229
Section 6(2).
230
Part I GN R1048 in GG 9238 of 25 May 1984.
231
Section 8.
232
Section 11(1).
233
Section 11(2).
234
Section 11(4).
235
Section 14(1).
236
Section 17.
237
Designated in terms of s 4.
238
Section 7.
239
Section 10.
240
Section 20.
241
Section 4(3).
242
Section 15(1).

certain issues.243 The Minister may establish a regional conservation committee in any
region (comprising several areas) determined by him,244 the functions of which are to
advise conservation committees within the region and the Department and the Board.245
The Board is an advisory body which advises the Minister on matters concerning the
control measures, schemes and any other matter arising from the application of the Act
or a scheme.246
A ‘soil conservation work’247 can be constructed by means of a subsidy under a
scheme,248 but thereafter the land user, and his successor in title, is responsible for its
maintenance at his own expense. The executive officer is responsible for overseeing the
efficiency of soil conservation works.249 The Minister may order the payment of certain
amounts in respect of the increase or diminution of the value of property on which soil
conservation works have been constructed.250
The Act also provides for, inter alia, extensive powers of investigation of the execu-
tive officer, other departmental officials, a member of a soil conservation committee
or other authorised person;251 allows appeals to the Minister against decisions taken by
other officials, including the executive officer;252 and empowers the Minister to make
regulations.253
Although the Act is largely built on the idea of compliance through persuasion rather
than coercion,254 it provides for severe penalties for certain offences, which include fail-
ure to comply with control measures, directions, and the provisions of a scheme.255
As far as the implementation of the Act is concerned, a number of areas of concern
have been identified.256 One of the major problems is lack of enforcement personnel: there
are very few inspectors and an acute shortage of agricultural technicians who are sup-
posed to provide support to land users in cases of erosion. 257 Another important problem
is the range of applicability of the Act. It does not apply to South African Development
243
Section 15(2).
244
Section 16(1).
245
Section 16(2).
246
Section 17(2).
247
Defined as any work which is constructed on land for:
(a) the prevention of erosion or the conservation of land which is subject to erosion;
(b) the conservation or improvement of the vegetation or the surface of the soil;
(c) the drainage of superfluous surface or subterranean water;
(d) the conservation or reclamation of any water source; or
(e) the prevention of the silting of dams and the pollution of water,
but not a work which is constructed on land in the course of prospecting or mining activities (s 1).
248
Section 8(1)(a)(i).
249
See s 12.
250
Section 13.
251
Section 18.
252
Section 21.
253
Section 29.
254
Verster (n 223) at 319.
255
Section 23, which provides for a penalty, for a first offence, of a fine not exceeding R5 000 or two years’
imprisonment or both; and maxima of R10 000 fine and/or four years’ imprisonment for subsequent
offences.
256
Verster (n 223) at 326–9.
257
Ibid at 326.

Trust land, nor does it apply in the former self-governing territories and TBVC states,
where some terrible instances of soil erosion are evident.258
Soil conservation is also addressed in other legislation. The protected areas legislation
discussed earlier in this chapter would be relevant, but apart from this, the following
Acts also have a bearing on the issue: the Mountain Catchment Areas Act 63 of 1970;259
the Subdivision of Agricultural Land Act 70 of 1970; and the National Roads Act 54 of
1971.260 In terms of the Development Trust and Land Act 18 of 1936, certain regulations
aimed at soil conservation were promulgated which remain in force by virtue of a provi-
sion of the Act which repealed the 1936 Act.261
5.6 Wetlands
Wetlands are defined in the Ramsar Convention as ‘areas of marsh, fen, peatland or water,
whether natural or artificial, permanent or temporary, with water that is static or flowing,
fresh, brackish or salt, including areas of marine water the depth of which at low tide does
not exceed six metres’.262 More generally, wetlands ‘are areas where water is the primary
factor controlling the environment and the associated plant and animal life. They occur
where the water table is at or near the surface of the land, or where the land is covered by
water’.263 Wetlands are of critical importance for a variety of reasons. According to the
Ramsar Convention Bureau:
Wetlands are among the world’s most productive environments. They are cradles of biological
diversity, providing the water and primary productivity upon which countless species of plants
and animals depend for survival. They support high concentrations of birds, mammals, reptiles,
amphibians, fish and invertebrate species. Of the 20,000 species of fish in the world, more than
40% live in fresh water. Wetlands are also important storehouses of plant genetic material. Rice,
for example, which is a common wetland plant, is the staple diet of more than half of humanity.
More and more economists and other scientists are working in the field of the valuation of
ecosystem services. This is a difficult task, still full of uncertainties, but there is no other choice
than to progress in this direction. Some recent studies have indicated that ecosystems provide
at least US$ 33 trillion worth of services annually, of which US$ 4.9 trillion are attributed to
wetlands.
The interactions of physical, biological and chemical components of a wetland, such as soils,
water, plants and animals, enable the wetland to perform many vital functions, for example:
water storage; storm protection and flood mitigation; shoreline stabilisation and erosion control;
groundwater recharge (the movement of water from the wetland down into the underground
aquifer); groundwater discharge (the movement of water upward to become surface water in a
258
Although some of these territories did enact legislation addressing soil conservation, which remains in
force until it is repealed: see W du Plessis ‘Integration of existing environmental legislation in the prov-
inces’ (1995) 2 SAJELP 23.
259
Section 3(1)(b)(i) and (ii).
260
Section 5(1)(c) and (e).
261
Abolition of Racially Based Land Measures Act 108 of 1991, s 11(2).
262
Ramsar Convention on Wetlands of International Importance Art 1. The definition in the National Water
Act 36 of 1998 is ‘land which is transitional between terrestrial and aquatic systems where the water table
is usually at or near the surface, or the land is periodically covered with shallow water, and which land
in normal circumstances supports or would support vegetation typically adapted to life in saturated soil’
(s 1).
263
Ramsar Information Paper No. 1 (at http://www.ramsar.org/pdf/about/info2007-01-e.pdf (accessed 9 May
2011).

wetland); water purification through retention of nutrients, sediments, and pollutants; and stabi-
lisation of local climate conditions, particularly rainfall and temperature.264
Parties to the Ramsar Convention, of which South Africa is one, are required to desig-
nate at least one wetland of international importance. South Africa has seventeen, two
of which are on the Montreux Record, which is a ‘warning list’ of sites under threat.265
Ramsar is concerned not only with the ‘flagship’ wetlands, however but also with wetland
conservation generally. This raises the question as to what South African measures there
are for conservation of wetlands.
The Ramsar Convention is not directly provided for in South African law, despite the
fact that South Africa has been a party since 1975. Nevertheless, despite the absence of
wetland-specific legislation, there are statutes which provide for conservation of wet-
lands. First, in terms of the National Water Act,266 wetlands fall under the definition of
‘watercourse’ and hence as a ‘water resource’. The Act is generally concerned with the
conservation and sustainable use of water resources, so all the applicable mechanisms in
that Act would apply equally to rivers, streams, wetlands and all other water resources.267
Essentially, nothing can be done that negatively affects a wetland without a licence under
that Act,268 although, at the time of writing, there was a proposal to establish a general
authorisation for the rehabilitation of wetlands.269 The authorisation contains various
conditions, including the requirement of a rehabilitation report (the contents of which are
spelt out in the notice).
The Biodiversity Act,270 although aimed primarily at implementing the Convention on
Biological Diversity in South Africa, is also aimed at implementing other conventions,
including the Ramsar Convention. Nowhere does the text of the Act expressly mention
wetlands, but the provisions relating to conservation of ecosystems are aimed at, inter
alia, conservation of wetlands.271
It is noticeable that the only specific environmental concern included in the NEMA
principles refers to ecosystems, including wetlands explicitly. Section 2(4)(r) provides
that ‘sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal
shores, estuaries, wetlands, and similar systems require specific attention in management
and planning procedures, especially where they are subject to significant human resource
usage and development pressure’.
While many of the high-profile wetlands are in protected areas (Ramsar sites are not
in themselves regarded as protected areas in South African law), there are many wetlands
that are found outside of protected areas and on privately owned land. Landowners do
not necessarily see the benefits of wetlands to themselves, resulting in threats to these
264
Ibid.
265
The sites are: Barberspan, Blesbokspruit, De Hoop Vlei, De Mond, Kosi Bay, Lake Sibaya, Langebaan,
Natal Drakensberg Park, Ndumo Game Reserve, Nylsvley Nature Reserve, Orange River Mouth, St Lucia,
Seekoeivlei Nature Reserve, Turtle Beaches/Coral Reefs of Tongaland, Verloren Valei Nature Reserve,
Verlorenvlei, Wilderness lakes. Blesbokspruit and the Orange River Mouth are the Montreux sites.
266
Act 36 of 1998.
267
See discussion on the National Water Act in Chapter 4.
268
See ss 21 and 22 in particular.
269
GN 541 in GG 32212 of 15 May 2009.
270
Act 10 of 2004. See discussion above, 102ff.
271
See above, 109–10.

wetlands. Although the legislative framework to conserve wetlands appears to be suf-

ficiently comprehensive, the challenge is in the implementation (especially considering
that the necessary lists of ecosystems under threat in terms of the Biodiversity Act have
not yet been produced). A final observation is that the symbolic importance of explicitly
singling out wetlands for conservation has not been achieved by our legislation and this
is, in my opinion, an opportunity missed.
6. Specific threats
6.1 Alien and invasive species
As noted above, the Biodiversity Act has a specific focus on alien and invasive species.272
The applicable provisions are, however, currently toothless since the delegated legislation
necessary to implement the provisions effectively has not yet appeared.
The Biodiversity Act is not the only legislation, however, that addresses alien and
invasive species. Currently, there are regulations under the Conservation of Agricultural
Resources Act273 which address ‘weeds and invader plants’.274 The regulations provide for
three categories of plants: Category 1 plants may not occur on any land or inland water
surface other than in biological control reserves.275 Category 2 plants may not occur on
any land or inland water surface other than a demarcated area or a biological control
area.276 Category 3 plants may not occur on any land or inland water surface other than in
biological control reserves, but existing plants are not covered by this prohibition.277 Land
users are required to control such plants, where they exist on land, by specified methods
including physical removal, use of herbicides, and biological control.278 These are some-
what reactive in nature and do not, for example, provide for planning in respect of alien
species control. They also only relate to plants, not animals. Moreover, the enforcement
of these regulations, at least in certain areas, leaves much to be desired.
Although not required by legislation, there is a seemingly successful programme called
the ‘Working for Water Programme’ which has been run since 1995 and which is aimed
at eradication of alien plants in river catchments and which utilises unemployed people to
carry out the removal.279 Some 300 projects are currently being carried out and—
Since its inception in 1995, the programme has cleared more than one million hectares of inva-
sive alien plants providing jobs and training to approximately 20 000 people from among the
most marginalised sectors of society per annum. Of these, 52% are women.280
272
See above, 110ff.
273
Act 43 of 1983.
274
GN R1048 in GG 10029 of 25 May 1984, as amended.
275
Reg 15A. This category includes species like prickly pear, water hyacinth and bugweed.
276
Reg 15B. Category 2 plants include weeping willow, guava, and black wattle.
277
Reg 15C. These include popular garden plants such as the jacaranda and St Joseph’s lily.
278
Reg 15E.
279
Details of the programme can be found at http://www.dwaf.gov.za/wfw/ (accessed 28 February 2011).
280
Ibid. This information and these statistics were available on the website in 2006 and remain unchanged.

6.2 Genetically modified organisms

The Convention on Biological Diversity (CBD) provides in art 8(g) that contracting
parties are required, as far as possible and appropriate, to ‘establish or maintain means
to regulate, manage or control the risks associated with the use and release of living
modified organisms resulting from biotechnology which are likely to have adverse envi-
ronmental impacts that could affect the conservation and sustainable use of biological
diversity, taking also into account the risks to human health’. It goes further, in art 19, to
provide that ‘the Parties shall consider the need for and modalities of a protocol setting
out appropriate procedures, including, in particular, advance informed agreement, in the
field of the safe transfer, handling and use of any living modified organism resulting from
biotechnology that may have adverse effect on the conservation and sustainable use of
biological diversity’.
To this end, the parties adopted the Cartagena Protocol on Biosafety.281 The main
objective of the protocol is the protection of biodiversity from potential risks posed by
‘living modified organisms’ resulting from modern biotechnology. To this end, it estab-
lishes an advance informed agreement procedure, contains reference to the precautionary
approach and makes provision for a Biosafety Clearing-House.
The existence of the protocol and concerns about living modified organisms, more
frequently referred to as genetically modified organisms (GMOs), expressed in the CBD,
raises the question: what are the risks for human health and the environment associ-
ated with the use of GMOs? Full understanding of these concerns is only possible if one
understands biotechnology generally, but such an examination is beyond the scope of this
book.282 The concerns, in short, are:
●● GM crops could express undesirable effects and become, for example, invasive weeds.
●● GM crops could transfer new genes to wild plants, which could then become weeds.
●● GM crops engineered to produce viruses could facilitate the creation of new, more
virulent or more widely spread viruses.
●● GM crops may destabilise genes, producing a ripple effect through the ecosystem in
unforeseeable ways.
●● Through contamination of local varieties, GM crops might threaten centres of crop
diversity — this has already occurred in Mexico, a centre of maize diversity.
●● GM plants engineered to express insecticides or other toxins present risks to non-
target organisms.283
In South Africa, GMOs are primarily regulated by the Genetically Modified Organisms
Act (GMO Act).284 According to the long title, the Act’s objectives are:
To provide for measures to promote the responsible development, production, use and applica-
tion of GMOs; to ensure that all activities involving the use of GMOs (including importation,
production, release and distribution) shall be carried out in such a way as to limit possible harm-
281
See Chapter 3 for further details on the Protocol.
282
See J Eastwood & E Pschorn-Strauss ‘The Genetically Modified Organisms Act: Paying lip service to
public participation sows seeds of dissent’ (2005) 12 SAJELP 123 for a useful treatment of the science and
concerns about GMOs.
283
Ibid at 127.
284
Act 15 of 1997.

ful consequences to the environment; to give attention to the prevention of accidents and the
effective management of waste; to establish common measures for the evaluation and reduction
of the potential risks arising out of activities involving the use of GMOs; to lay down the neces-
sary requirements and criteria for risk assessments; to establish a council for GMOs; to ensure
that GMOs are appropriate and do not present a hazard to the environment; and to establish
appropriate procedures for the notification of specific activities involving the use of GMOs; and
to provide for matters connected therewith.
The Act applies to the genetic modification of organisms; the development, production,
release, use and application of GMOs285 (including viruses and bacteriophages); and the
use of gene therapy.286 Various institutions are created by the Act, and their powers and
functions set out: the Executive Council for GMOs (‘the council’),287 the Registrar,288 and
an Advisory Committee.289 The Act also provides for inspectors and their powers.290
The council has an important role to play in the Act’s implementation. Section 4 of
the original Act (prior to amendment),291 dealing with the council’s objectives, specified
that its role was to advise the Minister on aspects concerning the development, produc-
tion, use, application and release of GMOs. This was amended to make the section less
specific, now referring to ‘activities relating to’ GMOs. Significant portions of s 5 relate
to the application for a permit to conduct activities in respect of GMOs, and the section
contains both mandatory requirements and discretionary aspects of the council’s duties
in this regard. The Act makes it mandatory for the council to ‘determine whether the
applicant must ..... submit an assessment in accordance with the relevant provisions of
[NEMA], of the impact on the environment and an assessment of the socio-economic
considerations of such activities’.292 The council must also have regard to scientifically
based risk assessments and proposed risk management measures.293 On the other hand,
the council may, before making a decision in respect of an application, consider public
input; the environmental impact assessment, or the potential socio-economic impact of
such activities.294 It is curious that the legislature regarded these considerations as dis-
cretionary — they ought to be critical considerations in decisions relating to GMOs and
should be mandatory requirements.
As far as regulation of GMOs is concerned, the Minister295 has the power, on the
recommendation of the council, to prohibit any activity involving genetically modified
organisms.296 Risk and liability are addressed in s 17, which requires users297 to ensure
285
A GMO is defined as an organism the genes or genetic material of which has been modified in a way that
does not occur naturally through mating or natural recombination or both (s 1).
286
Section 2(1).
287
Section 3ff.
288
Section 8.
289
Section 10.
290
Section 15.
291
Genetically Modified Organisms Amendment Act 23 of 2006.
292
Section 5(1)(a).
293
Section 5(1)(c).
294
Section 5(2)(a).
295
Minister of Agriculture.
296
Section 14.
297
‘User’ is defined as ‘any natural or legal person or institution responsible for the use of genetically modi-
fied organisms and includes an end-user or consumer’ (s 1).

that appropriate measures are taken to avoid an adverse impact on the environment which
may arise from the use of genetically modified organisms.298 The liability for damage
caused by the use or release of a genetically modified organism shall be borne by the
user concerned.299 Additional responsibilities are imposed on the user by s 17(1A), which
provides for steps that the user must take in the event of damage. If these steps are not
taken, s 17(3) provides that the council may take the necessary steps and recover the costs
incurred in so doing from the user and any other person who benefited from the steps in
terms of s 17A.
These are controversial provisions, since they absolve the originator of the GMO from
any responsibility and undermine the precautionary principle. The originator of the GMO
ought to release the GMO only once it is established that the GMO is safe. Under those
circumstances, the user may be held liable if using the GMO in an inappropriate way. As
the provision stands, it is a tacit admission that GMOs may well not be safe.
Section 18 of the Act deals with confidentiality. The extent of the information divulged
to the public in terms of this section has been narrowed by 2006 amendment: previously,
the Act provided that information that would not remain confidential included the descrip-
tion of the genetically modified organisms, and the evaluation of their foreseeable impact,
in particular any pathogenic or ecologically disruptive impact.300 This was changed to
disclosure of the general description of the genetically modified organisms; and ‘the
summary of the scientifically based risk assessment of the impact on the environment and
human and animal health’. This is of considerable concern, as these requirements could
conceivably be met by the provision of bland information containing little or no detail at
all. This and other secretive aspects of the regulation of GMOs are seen as unacceptable
in a society that is based on transparency and procedural fairness.301
Regulations under the Act regulate the permit application process,302 including detailed
provision for the requisite risk assessment process.
Other than the requirements of environmental impact assessment required by the
GMO Act and the Biodiversity Act, the EIA regulations under NEMA303 list as one of
the activities requiring ‘basic assessment’ the release of genetically modified organisms
into the environment in instances where assessment is required by the GMO Act or the
298
Section 17(1).
299
Section 17(2).
300
Section 18(2), before amendment, read:
‘The Council shall decide, after consultation with the applicant, which information will be kept confiden-
tial and shall inform the applicant of its decision: Provided that the following information shall not be kept
confidential—
(a) the description of the genetically modified organisms, the name and address of the applicant, and the
purpose of the contained use or release and the location of use;
(b) the methods and plans for the monitoring of the genetically modified organisms and for emergency
measures in the case of an accident; and
(c) the evaluation of foreseeable impacts, in particular any pathogenic or ecologically disruptive
impacts.’
301
See Eastwood & Pschorn-Strauss (n 282).
302
303
See below, 249.

Biodiversity Act, which does not provide any further EIA requirement than already pro-
vided for in those two Acts.304
There are a number of concerns about the GMO regulatory regime, relating, inter alia,
to the inadequacy of provision for the precautionary approach, and issues relating to
public participation and access to information (which have been exacerbated by the 2006
amendment).305 It could also be argued that the GMO Act is in conflict with NEMA as it
inadequately conforms to the principles and the objectives of the integrated environmen-
tal management procedure contemplated in Chapter 5.306
7. Conclusion
On paper, South Africa has a formidable array of legislation relating to the conservation
of biodiversity. In most cases, the legislation is recent, reflecting current international
developments. The main challenges faced by the relevant authorities in ensuring that the
legislation meets its objectives are twofold. The first challenge is the necessary fleshing
out of the skeletons provided by the Acts, by means of regulations, lists and so forth.
Delays in this regard result in many important aspects of the legislation essentially being
a dead letter. There have been some improvements in this position since this observation
was made in the first edition of this book, although many others have not yet been fleshed
out. The second challenge is to implement and enforce the legislation effectively in the
context of limited resources, which is a concern for South African environmental law
generally.
304
GN R544 in GG 33306 of 18 June 2010.
305
See Nadine Lianne Barron ‘A case of throwing caution to the wind: A critical analysis of the EIA pro-
visions contained in the Genetically Modified Organisms Act of South Africa’ (2003) 10 SAJELP 93;
Eastwood & Pschorn-Strauss (n 282). See also, on access to information, Earthlife Africa (Cape Town) v
Director-General: Department of Environmental Affairs and Tourism 2005 (3) SA 156 (C).
306
Barron ibid.

6
Pollution Control and Waste
Management
Pollution can be defined as ‘the introduction by man into the environment of substances
or energy liable to cause hazards to human health, harm to living resources and ecologi-
cal systems, damage to structures or amenity, or interference with legitimate uses of the
environment’.1 In South Africa’s National Environmental Management Act,2 pollution is
defined as:
any change in the environment caused by—
(i) substances;
(ii) radioactive or other waves; or
(iii) noise, odours, dust or heat,
emitted from any activity, including the storage or treatment of waste or substances, construc-
tion and the provision of services, whether engaged in by any person or an organ of state, where
that change has an adverse effect on human health or well-being or on the composition, resil-
ience and productivity of natural or managed ecosystems, or on materials useful to people, or
will have such an effect in the future.
For the reasons appearing in these definitions, it is today universally accepted that pollu-
tion must be combated. In the past fifteen years, scientists have estimated that up to forty
percent of human deaths worldwide can be attributed to environmental factors, especially
organic and chemical pollutants.3
It must be appreciated, however, that it is completely unrealistic to aim at complete
prevention of pollution, since ‘total elimination of pollution would effectively require the
elimination of modern civilization’.4 Since the production of pollution is an inevitable
side-effect of life, the critical issue for pollution control is the drawing of a line between
what is acceptable and what is unacceptable.
The concepts of ‘pollution’ and ‘waste’ are closely related, but not synonymous. Waste
can be defined as that which ‘we do not want or what we fail to use, with the proviso that
‘‘failure to use’’ includes ‘‘failure to use for its proper purpose’’’.5 Pollution need not
1
MW Holdgate A Perspective of Environmental Pollution (1979) at 7. Cf Albert Weale The New Politics of
Pollution (1992) at 3, whose definition does not require that pollution comes from human sources.
2
Act 107 of 1998.
3
David Pimental et al ‘Ecology of increasing disease: Population growth and environmental degradation’
(1998) 48 Bioscience 817.
4
P Aarne Vesilind & J Jeffrey Peirce Environmental Pollution and Control 2 ed (1983) at 2.
5
KA Gourlay World of Waste: Dilemmas of Industrial Development (1992) at 21. This is just one of a host
of definitions. The Concise Oxford Dictionary of Current English 7 ed (1984) defines ‘waste’ as ‘superflu-
ous, refuse, no longer serving a purpose, left over after use’. While this definition is acceptable as far as it
extends, it fails to explain why it is that waste is something which is left over after use, and the description
of waste as ‘no longer serving a purpose’ is inaccurate in that much of the matter perceived by one person
as waste in this sense may be regarded as something useful by another.
142

Pollution Control and Waste Management 143
necessarily be caused by waste, in the sense that it is defined here. On the other side of the
coin, if waste is handled and disposed of correctly, it need not cause pollution.
This definition covers a huge field and a large variety of matter. There are, clearly,
different types of waste and often the different types of waste require different methods
of management. Most writers simply set out various categories without adequately con-
sidering the relevant taxonomy. In fact, there is a problem with classifying waste since
‘attempts to produce a taxonomy by applying the same criteria throughout inevitably
leads to overlapping or omissions and end in compromise’.6
In theory there are numerous ways of classifying waste: by source (domestic, indus-
trial, agricultural), form (solid, liquid, gas), inherent properties (biodegradable, non-bio-
degradable) or its effects (harmless/harmful to human beings/animals/the environment).
When one sees how classification has been done in practice, it becomes apparent that
there is often a combination of methods which leads to some lack of certainty.
There is a plethora of legislation in South Africa dealing with pollution and waste,
which is either aimed directly at combating pollution or indirectly has the effect of doing
so. This chapter will examine this legislation, highlighting the important enactments
and assessing their effectiveness. For the sake of convenience, the legislation will be
examined in various categories, identified either by medium (like air, water, sea) or by
type (for example, pesticides, solid waste).
First, however, it will be instructive to examine certain principles of pollution control
and waste management which ought to be applicable whatever the type of pollution one
is addressing. These principles are the criteria which should be used in order to assess the
value of our legislation. This will be followed by a discussion of the common-law controls
which can be used to address pollution problems.
1. General principles
Pollution adversely affects the earth’s vitality and diversity, conservation of which is one
of the nine principles of sustainable living, according to Caring for the Earth.7 According
to Yeld, one of the ‘priority actions aimed at conserving Earth’s vitality and diversity’ is
that:
a highly conservative approach — the ‘Precautionary Principle’ — to pollution must be adopted
by industry and government by minimising, and wherever possible preventing, the discharge
of harmful substances. A ‘cradle-to-grave’ approach should be applied to reduce or eliminate
pollution at all stages of production, instead of concentrating only on cleaning-up operations at
the ‘end of pipe’.8
This quote by implication reflects the fact that it is completely unrealistic to aim at
complete prevention of pollution. Control, therefore, should aim at the greatest possible
reduction of pollution. As Yeld exhorts, ‘to stay within the Earth’s carrying capacity
governments and communities must reduce excessive consumption and eliminate waste-
ful practices’.9
6
Gourlay (n 5) at 24.
7
IUCN/UNEP/WWF (1991) Caring for the Earth. A Strategy for Sustainable Living Chapter 4.
8
John Yeld Caring for the Earth South Africa: A Strategy for Sustainable Living (1993) at 18.
9
Ibid at 21.

Included in the 1992 Agenda 21 document10 is a chapter headed ‘Environmentally

sound management of solid wastes and sewage-related issues’.11 Here it is stated that:
Environmentally sound waste management must go beyond the mere safe disposal or recovery
of wastes that are generated and seek to address the root cause of the problem by attempting to
change unsustainable patterns of production and consumption. This implies the application of
the integrated life cycle management concept which presents a unique opportunity to reconcile
development with environmental protection.12
The document continues by recognising that the framework for the necessary action
should be based on a ‘hierarchy of objectives’ and ought to focus on ‘the four major
waste-related programme areas’.13 These programme areas are:
(a) minimising wastes;
(b) maximising environmentally sound waste re-use and recycling;
(c) promoting environmentally sound waste disposal and treatment;
(d) extending waste service coverage.14
The first three ‘programme areas’ identified by UNCED correspond with the conven-
tional view as to what constitute the three fundamental objectives of waste management.
These are:
(i) the avoidance of waste production;
(ii) the reduction of those wastes which cannot be avoided; and
(iii) disposal of the residue in an environmentally acceptable and safe way.15
Although focused on waste management, these objectives accord with the general
objectives of pollution control in the wider sense. Any assessment of the effectiveness
and comprehensiveness of pollution control law must be conducted in the light of these
objectives.
According to the White Paper on Integrated Pollution and Waste Management for
South Africa,16 the objectives for integrated pollution and waste management in South
Africa are:
10
See above, 56.
11
UNCED Agenda 21 Chapter 21.
12
Section 21.4.
13
Section 21.5.
14
Ibid.
15
Department of Environmental Affairs and Tourism White Paper on Integrated Pollution and Waste
Management for South Africa (2000) at 18. See also the Situation of Waste Management and Pollution
Control in South Africa Report to the Department of Environment Affairs by the CSIR Programme for
the Environment CPE 1/91 at 147; Llewellyn Botha South African Urban Solid Waste Legislation and its
Application: Proposals Towards Reform (unpublished MA thesis, University of Cape Town 1988) at 15;
Report of the Three Committees of the President’s Council on a National Environmental Management
System (1991) at 94; Ludwig Kramer Focus On European Environmental Law (1992) at 32; Department
of Environmental Affairs and Tourism Towards a New Environmental Policy for South Africa (1996) at
96. The Report to the President’s Council includes two more specific objectives (greater use of degradable
packaging material and the sorting of household waste at source to facilitate disposal and recycling) but it
is submitted that these can be subsumed under the three overarching objectives identified in the text.
16
(n 15).

●● To promote cleaner production and establish mechanisms to ensure continuous

improvements in best practice in all areas of environmental management;
●● To prevent, reduce and manage pollution of any part of the environment due to all
forms of human activity, and in particular from radioactive, toxic and other hazard-
ous substances;
●● To set targets to minimise waste generation and pollution at source and promote a
hierarchy of waste management practices, namely reduction of waste at source, re-use
and recycling, with safe disposal as the last resort;
●● To regulate and monitor waste production, enforce waste control measures, and
co-ordinate administration of integrated pollution and waste management through a
single government department;
●● To set up information systems on chemical hazards and toxic releases and ensure the
introduction of a system to track the transport of hazardous materials;
●● To ensure the protection and proactive management of human health problems related
to the environment in all forms of economic activity.
2. Common-law controls
Pollution control is addressed mainly through legislation, but there are aspects of the
common law that can be used to deal with pollution problems. Probably the two most
relevant remedies for those individuals who suffer from pollution are the law of nuisance
and the Aquilian action (law of delict).
2.1 The law of nuisance

A private nuisance17 occurs when a neighbour interferes with an owner’s use and
enjoyment of his land.18 In South African law, the concept appears to be confined to
interference with the physical comfort of human existence.19 Types of nuisance which
could fall under the definition of pollution are smoke, odours, water pollution and noise.
An interference with the comfort of human existence is not actionable as a nuisance
unless it is unreasonable. The test for reasonableness involves an objective evaluation of
the circumstances and milieu in which the alleged nuisance has occurred.20 Factors which
are of particular relevance to this consideration are those relating to the gravity of the
harm suffered and those concerning the utility of the conduct which has caused the harm.
Factors relating to gravity are:
(i) the measure or extent of interference;21
(ii) the suitability of the plaintiff’s use;22
17
As opposed to a public nuisance, see below.
18
It is not a strict necessity that the person making the nuisance is a neighbour (although it usually is) and the
victim does not have to be the owner, but can be a lawful occupier.
19
JRL Milton ‘Nuisance’ in WA Joubert (ed) The Law of South Africa (1983) at para 184.
20
De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) at 192E; Holland v Scott (1882) 2 EDC
307 at 322; Graham v Dittman & Son 1917 TPD 288 at 290; Liss Shoe Co (Pty) Ltd v Moffett Building and
Contracting (Pty) Ltd 1952 (3) SA 484 (O) at 488.
21
Milton (n 19) at para 189.
22
Ibid at para 190.

(iii) the duration of the interference;23

(iv) the time the interference took place;24
(v) the sensitivity of the plaintiff to harm;25 and
(vi) the possibility of avoiding or mitigating the harm.26
Factors relating to utility are:
(i) the nature of the activity;27
(ii) the motive or purpose of the defendant;28
(iii) the locality;29 and
(iv) the practicability of preventing the harm occurring.30
The remedies for private nuisance are (i) self-help;31 (ii) an abatement notice;32 (iii) an
interdict;33 and (iv) an action for damages.34 Only the landowner or person in whom the
owner’s rights are vested will have locus standi in a nuisance action.35 Self-help is appli-
cable only in cases of urgent necessity.36
Abatement orders normally apply only in cases where a nuisance has been provided for
in a statute or piece of legislation (ie a statutory nuisance). In such cases local authorities
or empowered officials are entitled to issue abatement orders.37
An interdict can take the form of restraining the offender either from establishing an
apprehended nuisance38 or from continuing an existing one,39 or requiring him to take
measures to remedy the situation.40 Fault is not a necessary element for the granting of an
interdict.41 The applicant for an interim interdict must prove the following:
(a) a prima facie right;
(b) apprehended harm which may be irreparable;
23
Ibid at para 191.
24
Ibid at para 192.
25
Ibid at para 193.
26
Ibid at para 194.
27
Ibid at para 196.
28
Ibid at para 197.
29
Ibid at para 198.
30
Ibid at para 199.
31
Ibid at para 210.
32
Ibid at para 211.
33
Ibid at paras 212–15.
34
Ibid at paras 216–20.
35
Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T); Malone v Laskey [1907] 2 KB 141 at 151.
36
London and SA Exploration Co v Rouliot (1890) 8 SC 74 at 98; Boss v Whyte (1906) EDC 313 at 322; R v
Lategan and Lategan 1950 (4) SA 739 (C) at 747.
37
See, for example, the national noise regulations promulgated in terms of the Environment Conservation
Act 73 of 1989 (see below, 198ff).
38
The Municipality of Cape Town v Levin (1884) 3 SC 164 at 169; The Durban Trolley Co (Ltd) v The Durban
Corp (1891) 12 NLR 104 at 105 and 111; Joseph Ellis Brown v James Bennett McCord (1906) 27 NLR 674
at 682; Winshaw v Miller 1916 CPD 439 at 445.
39
Blacker v Carter (1905) 19 EDC at 223; Bell v East London Municipality 1928 EDL 354 at 366.
40
Beaufort West Municipality v McIntyre (1899) 16 SC 541 at 543.
41
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 106.

(c) a balance of convenience; and

(d) the absence of a satisfactory alternative remedy.42
‘Irreparable’ harm would include harm which cannot be adequately compensated in
money (eg annoyance), or the threat of physical harm.43 The fourth requirement means
that an action for damages would not provide adequate relief in the circumstances.44
A final interdict requires proof of:
(a) a clear right;
(b) injury committed or apprehended;
(c) absence of a satisfactory alternative remedy.45
As far as the action for damages is concerned, this would be used where there is some
patrimonial loss involved. It appears that it is not necessary for there to be proof of fault
for the claim to be successful,46 although this is not beyond doubt.47
Defences to a nuisance action are (a) statutory authority;48 (b) servitude49 and (c) com-
ing to the nuisance.50
There is also the concept of public nuisance, which is essentially a nuisance whose
harmful effect is so extensive as to affect the general public at large or at least a distinct
class of person within its field of operation.51 Although generally public nuisances are
challenged in the civil courts, they may constitute criminal offences, generally where
so provided by legislation.52 Alternatively, civil proceedings may be instituted in cases
where the nuisance is so extensive or widespread so as to affect the public at large53
or threaten the public health.54 The action is generally undertaken by a local authority
although, in appropriate circumstances, private individuals have been known to take the
initiative.55 Such an individual would have to satisfy the locus standi requirements.56 At
common law a local authority having jurisdiction over the area in which a public nuisance
42
43
Joseph Ellis Brown v James Bennett McCord (n 38) at 131.
44
Cf Pike v Municipality of Grahamstown 1913 EDL 126; Windhoek Municipality v Lurie & Co (SWA) (Pty)
Ltd 1957 (1) SA 164 (SWA) at 169.
45
46
Bloemfontein Town Council v Richter 1938 AD 195 at 229–30; Flax v Murphy 1991 (4) SA 58 (W).
47
See Milton (n 19) at para 219.
48
Ibid at para 222. See also East London Western Districts Farmers’ Association v Minister of Education
and Development Aid 1989 (2) SA 63 (A); Eskom v Rini Town Council 1992 (4) SA 96 (E); Diepsloot
Residents and Landowners Association v Administrator, Transvaal 1993 (3) SA 49 (T).
49
50
Although this is a defence only in certain limited circumstances: see Milton (n 19) at para 224.
51
52
For example, the Health Act 63 of 1977 (s 39(1) and (2) read with s 1).
53
Dell v Town Council of Cape Town (1879) 9 Buch 2; East London Municipality v Ellis and the East
London Harbour Board 1907 EDC 261; Windhoek Municipality v Lurie & Co (SWA) (Pty) Ltd (n 44) at
168–9.
54
Beaufort West Municipality v McIntyre (n 40); Municipality of Stellenbosch v Levinsohn 1911 CPD 203 at
206–7.
55
See East London Western Districts Farmers’ Association v Minister of Education and Development Aid
(supra).
56
See above, 26.

is situated may institute proceedings on behalf of the public for the abatement of the
nuisance.57
In Vogel v Crewe,58 which involved a nuisance that was not a pollution-type nuisance
but a complaint about a neighbour’s trees, the judge dismissed the application but held
that:
… trees form an essential part of our human environment, not only in terms of giving us aes-
thetic pleasure but also functionally in the provision of shade and oxygen. Like any other living
thing they also require in return for pleasure provided a certain amount of effort and tolerance.
Times change and in the light of our increasing awareness of the importance of protecting our
environment, perhaps we need to become more tolerant of the inevitable problems caused by
the shrinking size of properties and the greater proximity of neighbours and neighbours’ trees.59
2.2 Aquilian action

Where an act of pollution has caused personal injury or damage to someone’s property,
the victim can use the delictual remedy of the Aquilian action. The plaintiff must prove
the following requirements:
(i) wrongful act or omission on the part of the defendant;
(ii) fault (intention or negligence) on the part of the defendant;
(iii) causation (ie that the act caused the damage or loss complained of); and
(iv) patrimonial loss.
It is clear that this remedy can be used only in certain instances of pollution, since many
acts of pollution do not lead to loss being suffered by an identifiable plaintiff. Damage
to the environment itself would not suffice, since the environment itself does not have
standing. Moreover, even where damage or loss is suffered, it is often extremely diffi-
cult for the plaintiff to prove that the damage or harm was caused by the defendant’s act
of pollution.
In Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd,60 in an action for
damages arising from the release of contaminated water from the defendant’s premises,
the court held that, in the case of the breach of a statutory duty (which this case was, the
emission of contaminated water being prohibited by regulations in terms of the Mines
and Works Act61) it may not be necessary for the plaintiff to allege fault on the part
of the defendant. The court held that, in casu, it was not necessary for the plaintiff to
allege fault. In other words, the legislature had intended for the provision to provide for
strict (delictual) liability. This decision is somewhat problematic because the authority on
which the court relies seems to suggest that the breach of a statutory duty is relevant to the
wrongfulness aspect rather than fault. Moreover, the court’s finding that the legislature
57
East London Municipality v Ellis and the East London Harbour Board (n 53); Municipality of Stellenbosch
v Levinsohn (n 54); Kingwilliamstown Municipality v Horwitz 1946 EDL 128 at 138; Windhoek Municipal-
ity v Lurie & Co (SWA) (Pty) Ltd (supra) at 168–9.
58
2003 (4) SA 509 (T).
59
At para [5].
60
1997 (4) SA 578 (W).
61
Act 27 of 1956.

intended for strict liability (by implication, since it is not directly provided for) is not the
only reasonable interpretation which could have been reached.
Clearly one of the major flaws of using the common law (either nuisance or the law of
delict) is that it casts a burden of expense, time and other pressures on the plaintiff. Where
pollution is prohibited by legislation, it is the state’s responsibility to take the necessary
steps either to put a stop to the action or to prosecute the offender. In cases where there
has not been patrimonial loss for which compensation is being sought, it is obviously
preferable for the individual to refer the matter to the relevant authority rather than to
take up the matter himself.
3. General pollution and environmental harm

There are certain legislative provisions which can be used for pollution and environmen-
tal harm or degradation, whatever the source and whatever the medium is that is being
polluted.
3.1 Section 28 of NEMA

Section 28 of the National Environmental Management Act (NEMA)62 provides as
follows:
‘Duty of care and remediation of environmental damage
(1) Every person who causes, has caused or may cause significant pollution or degra-
dation of the environment must take reasonable measures to prevent such pollu-
tion or degradation from occurring, continuing or recurring, or, in so far as such
harm to the environment is authorised by law or cannot reasonably be avoided or
stopped, to minimise and rectify such pollution or degradation of the environ-
ment.
(1A) Subsection (1) also applies to a significant pollution or degradation that—
(a) occurred before the commencement of this Act;
(b arises or is likely to arise at a different time from the actual activity that
caused the contamination; or
(c) arises through an act or activity of a person that results in a change to pre-
existing contamination.
(2) Without limiting the generality of the duty in subsection (1), the persons on whom
subsection (1) imposes an obligation to take reasonable measures, include an
owner of land or premises, a person in control of land or premises or a person
who has a right to use the land or premises on which or in which—
(a) any activity or process is or was performed or undertaken; or
(b) any other situation exists,
which causes, has caused or is likely to cause significant pollution or degradation
of the environment.
(3) The measures required in terms of subsection (1) may include measures to—
(a) investigate, assess and evaluate the impact on the environment;
62
Act 107 of 1998.

(b) inform and educate employees about the environmental risks of their work
and the manner in which their tasks must be performed in order to avoid
causing significant pollution or degradation of the environment;
(c) cease, modify or control any act, activity or process causing the pollution or
degradation;
(d) contain or prevent the movement of pollutants or the causant of degradation;
(e) eliminate any source of the pollution or degradation; or
(f) remedy the effects of the pollution or degradation.
(4) The Director-General or a provincial head of department may, after consultation
with any other organ of state concerned and after having given adequate opportu-
nity to affected persons to inform him or her of their relevant interests, direct any
person who fails to take the measures required under subsection (1) to—
(a) investigate, evaluate and assess the impact of specific activities and report
thereon;
(b) commence taking specific reasonable measures before a given date;
(c) diligently continue with those measures; and
(d) complete them before a specified reasonable date:
Provided that the Director-General or a provincial head of department may, if
urgent action is necessary for the protection of the environment, issue such direc-
tive, and consult and give such opportunity to inform as soon thereafter as is rea-
sonable.
(5) The Director-General or a provincial head of department, when considering any
measure or time period envisaged in subsection (4), must have regard to the fol-
lowing:
(a) the principles set out in section 2;
(b) the provisions of any adopted environmental management plan or environ-
mental implementation plan;
(c) the severity of any impact on the environment and the costs of the measures
being considered;
(d) any measures proposed by the person on whom measures are to be imposed;
(e) the desirability of the State fulfilling its role as custodian holding the envi-
ronment in public trust for the people;
(f) any other relevant factors.
(6) If a person required under this Act to undertake rehabilitation or other remedial
work on the land of another, reasonably requires access to, use of or a limitation
on use of that land in order to effect rehabilitation or remedial work, but is unable
to acquire it on reasonable terms, the Minister may—
(a) expropriate the necessary rights in respect of that land for the benefit of the
person undertaking the rehabilitation or remedial work, who will then be
vested with the expropriated rights; and
(b) recover from the person for whose benefit the expropriation was effected all
costs incurred.
(7) Should a person fail to comply, or inadequately comply, with a directive under
subsection (4), the Director-General or provincial head of department may take
reasonable measures to remedy the situation or apply to a competent court for
appropriate relief.

(8) Subject to subsection (9), the Director-General or provincial head of depart-

ment may recover costs for reasonable remedial measures to be undertaken
under subsection (7), before such measures are taken and all costs incurred
as a result of acting under subsection (7), from any or all of the following
persons—
(a) any person who is or was responsible for, or who directly or indirectly con-
tributed to, the pollution or degradation or the potential pollution or degra-
dation;
(b) the owner of the land at the time when the pollution or degradation or the
potential for pollution or degradation occurred, or that owner’s successor in
title;
(c) the person in control of the land or any person who has or had a right to use
the land at the time when—
(i) the activity or the process is or was performed or undertaken; or
(ii) the situation came about; or
(d) any person who negligently failed to prevent—
(i) the activity or the process being performed or undertaken; or
(ii) the situation from coming about:
Provided that such person failed to take the measures required of him or her under
subsection (1).
(9) The Director-General or provincial head of department may in respect of the
recovery of costs under subsection (8), claim proportionally from any other per-
son who benefited from the measures undertaken under subsection (7).
(10) The costs claimed under subsections (6), (8) and (9) must be reasonable and may
include, without being limited to, labour, administrative and overhead costs.
(11) If more than one person is liable under subsection (8), the liability must be appor-
tioned among the persons concerned according to the degree to which each was
responsible for the harm to the environment resulting from their respective fail-
ures to take the measures required under subsections (1) and (4).
(12) Any person may, after giving the Director-General or provincial head of depart-
ment 30 days’ notice, apply to a competent court for an order directing the Direc-
tor-General or any provincial head of department to take any of the steps listed
in subsection (4) if the Director-General or provincial head of department fails to
inform such person in writing that he or she has directed a person contemplated
in subsection (8) to take one of those steps, and the provisions of section 32(2) and
(3) shall apply to such proceedings with the necessary changes.
(13) When considering any application in terms of subsection (12), the court must take
into account the factors set out in subsection (5).
(14) No person may—
(a) unlawfully and intentionally or negligently commit any act or omission
which causes significant or is likely to cause significant pollution or degra-
dation of the environment;
(b) unlawfully and intentionally or negligently commit any act or omission
which detrimentally affects or is likely to affect the environment in a sig-
nificant manner; or
(c) refuse to comply with a directive issued under this section.

(15) Any person who contravenes or fails to comply with subsection (14) is guilty
of an offence and liable on conviction to a fine not exceeding R1 million or to
imprisonment for a period not exceeding 1 year or to both such a fine and such
imprisonment.’
This is a convoluted and complex provision, particularly in respect of its enforcement,
although 2009 amendments to NEMA address some of these problems.63 Essentially,
however, it provides for a duty of care on any person who causes, has caused or may cause
significant pollution or degradation of the environment to take reasonable measures to
prevent such pollution or degradation from occurring, continuing or recurring. This duty
extends not only to the originator, but also to the owner of land or premises, a person in
control of land or premises or a person who has a right to use the land or premises on
which or in which any activity or process is or was performed or undertaken, or any other
situation exists, which causes, has caused or is likely to cause significant pollution or
degradation of the environment.
The relevant authority may direct the individual in question to take certain steps in this
regard. Should the recipient of such directive fail to comply, the authority can take the
necessary steps and then recover the costs, not just from the polluter but from any or all
of the persons listed in sub-s (8). Failure to comply with the directive was not a criminal
offence prior to the 2009 changes, but now it is, and subject to stiff penalties as well.
This is, at first glance, a worthwhile provision, but it raises considerable difficulties in
respect of enforcement. A potential problem, which has now been addressed by amend-
ment to the section, related to the ability of the relevant environmental authority to take
remedial measures on default by the recipient of the directive. This problem related to the
lack of a budget by most, if not all, environmental authorities to carry out remedial meas-
ures themselves, since the section provided for recovery of costs only after the work had
been done. Now, sub-s (8) provides for cost recovery before the remedial measures are
taken, which removes the problem. A related problem not addressed by amendment, how-
ever, is sub-s (11), which makes it mandatory for the authority to apportion the liability
amongst all persons according to the degree to which each was responsible for the harm.
This requirement is practically impossible, particularly in the case of historic polluters.64
As far as historic pollution is concerned, it was held in Bareki NO v Gencor Ltd65 that
s 28 (before insertion of sub-s (1A)) does not operate retrospectively, which flies in the
face of earlier academic opinion that it does.66 The decision is clearly wrong because it
fails to take proper account of the wording used in s 28(1) — ‘has caused’ — and because
it fails to recognise that pollution is an ongoing process. Someone who gives rise to a state
of affairs that continues polluting into the future (eg a toxic waste dump) clearly ‘causes’
pollution until such time that the polluting cause is made safe. Even if one ignores the
words ‘has caused’, a polluting activity that originated before the Act was promulgated
but continues to pollute after the Act came into effect would be covered by s 28. In any
63
National Environment Laws Amendment Act 14 of 2009.
64
See Michael Kidd ‘Some thoughts on statutory directives addressing environmental damage in South
Africa’ (2003) 10 SAJELP 201.
65
2006 (1) SA 432 (T).
66
Friedrich Soltau ‘The National Environmental Management Act and liability for environmental damage’
(1999) 6 SAJELP 33 at 48–9, Jan Glazewski Environmental Law in South Africa 2 ed (2005) at 150.

event, Bareki is no longer applicable, since the insertion of sub-s (1A) makes it clear that
the section does operate retrospectively (which was always the legislature’s intention, but
evidently this should have been made clearer).
A further point to note is that s 28 operates in respect of ‘significant’ pollution or
degradation. In Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts
Products67 the court held that ‘the assessment of what is significant involves … a consid-
erable measure of subjective import’ but that, following Glazewski,68 ‘the threshold level
of significance will not be particularly high’.69
3.2 Section 31A of the Environment Conservation Act

Section 31A of the ECA, which has been used in several documented instances,70 provides:
‘Powers of Minister, competent authority, local authority or government institution
where environment is damaged, endangered or detrimentally affected
(1) If, in the opinion of the Minister or the competent authority, local authority or
government institution concerned, any person performs any activity or fails to
perform any activity as a result of which the environment is or may be seriously
damaged, endangered or detrimentally affected, the Minister, competent author-
ity, local authority or government institution, as the case may be, may in writing
direct such person—
(a) to cease such activity; or
(b) to take such steps as the Minister, competent authority, local authority or
government institution, as the case may be, may deem fit,
within a period specified in the direction, with a view to eliminating, reducing or
preventing the damage, danger or detrimental effect.
(2) The Minister or the competent authority, local authority or government institu-
tion concerned may direct the person referred to in subsection (1) to perform any
activity or function at the expense of such person with a view to rehabilitating any
damage caused to the environment as a result of the activity or failure referred
to in subsection (1), to the satisfaction of the Minister, competent authority, local
authority or government institution, as the case may be.
(3) If the person referred to in subsection (2) fails to perform the activity or func-
tion, the Minister, competent authority, local authority or government institution,
depending on who or which issued the direction, may perform such activity or
function as if he or it were that person and may authorise any person to take all
steps required for that purpose.
(4) Any expenditure incurred by the Minister, a competent authority, a local author-
ity or a government institution in the performance of any function by virtue of the
provisions of subsection (3), may be recovered from the person concerned.’
67
2004 (2) SA 393 (E).
68
Jan Glazewski Environmental Law in South Africa (2000) at 178.
69
At 414I–415A.
70
See, for instance, the cases of HTF Developers (Pty) Ltd v The Minister of Environmental Affairs and
Tourism 2006 (5) SA 512 (T) and Petro Props (Pty) Ltd v Barlow (unreported judgment 2005/29663 (W)).

Section 31A is aimed at essentially the same kind of situation envisaged by s 28 of
NEMA, except is confined to situations where there is ‘serious’ damage or endangerment
of the environment, whereas the NEMA provision could possibly be used in wider cir-
cumstances because it relates to ‘significant’ pollution or degradation of the environment.
Otherwise, s 31A also allows the government body to take remedial steps and to recover
costs from the ‘person concerned’, which appears to be a far simpler exercise than the
process discussed above under s 28. Moreover, failure to comply with a s 31A directive is
an offence for which the defaulter would be liable on conviction to a fine, or to imprison-
ment for a period not exceeding three months.71
Another advantage of s 31A is that it can be exercised by more officials than can s 28,
which is a power confined to the Director-General or provincial head of department. A
s 31A directive can be issued by the ‘Minister or the competent authority,72 local author-
ity or government institution73 concerned’. The Act allows the competent authority to
delegate the power to issue s 31A directives to any officer or employee of provincial
administration concerned.74 This power could therefore be delegated to a compliance
officer. This makes it easier to use in the field than s 28.
A possible stumbling block (now judicially removed) in respect of s 31A is the require-
ment in s 32 that if a competent authority intends to issue a regulation or a direction in
terms of the Act, a draft notice shall first be published in the Official Gazette, which must
include the text of the proposed direction and a request for interested parties to submit
comments within a period of not less than thirty days after the publication of the notice.
The Cape High Court considered the application of s 32 to directions issued in terms
of s 31A in the case of Evans v Llandudno/Hout Bay Transitional Metropolitan Sub-
structure.75 Although the court felt it unnecessary to decide the matter definitively, it
suggested that directives under s 31A would not be required to comply with the publicity
requirements of s 32 and it is submitted that this is the correct view.76
This, however, was not the view taken in by the Supreme Court of Appeal in HTF
Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism,77 where the
majority of the court took a literal (and unfortunate) view and held that publication in
the Gazette was necessary for exercise of the power in s 31A. On appeal in the Con-
stitutional Court,78 the court took a purposive view of the provision and correctly held
71
Section 29(3).
72
A ‘competent authority’ is defined as ‘in so far as a provision of this Act is applied in or with reference
to a particular province, … the competent authority to whom the administration of this Act has under
s 235(8) of the Constitution of the Republic of South Africa [the interim 1993 Constitution, Act 200 of
1993] been assigned in that province’ (s 1). Such assignments were made in such a way that the Premier of
the province in question would designate a competent authority in that provincial government, who would
tend to be the Member of the Executive Council responsible for environmental affairs. The Act allows the
competent authority to delegate the power to issue s 31A directives to any officer or employee of provincial
administration concerned.
73
‘Government institution’ means any institution, body, company or close corporation recognised by the
Minister by notice in the Gazette (s 1).
74
Section 33.
75
2001 (2) SA 342 (C).
76
See further discussion in Kidd (n 64) at 208–9.
77
2007 (5) SA 438 (SCA).
78
MEC: Department of Agriculture, Conservation and Environment v HTF Developers (Pty) Ltd 2008 (2)
SA 319 (CC).

that the s 32 procedure did not apply. In the majority judgment, the judges held that the
notice-and-comment procedure in s 32 would defeat the objects of s 31A, which are to
‘equip officials charged with the task of protecting the environment with the powers
to respond to emergency situations that cause serious harm or pose a serious danger to
the environment’.79 In a second, concurring, minority judgment, the approach was that
s 32 has the purpose of facilitating public involvement in the ‘making of regulations,
directions, identifications, declarations or determination of policies’.80 Section 31A, on
the other hand, is aimed at individuals (instead of the general public) and is aimed at
preventing harm to the environment (sometimes in urgent situations). Given these two
objectives, the minority was of the opinion that following the s 32 procedure would defeat
the ‘very purpose’ of s 31A.81
One further issue to consider is the question of procedural fairness, in respect of both
s 28 of NEMA and s 31A of the ECA. In the absence of the procedure contemplated in
s 32, how does the recipient of a directive in terms of s 32 receive procedural fairness?
This issue was dealt with in both judgments in HTF Developers, the court correctly
pointing out that s 3 of the Promotion of Administrative Justice Act82 would apply. In
practice, the environmental authorities using s 31A (and, for that matter, s 28 of NEMA)
provide the intended recipient with a letter indicating an intention to issue a directive and
give that person a short period of time to respond, before issuing the ‘final’ directive. This
ensures procedural fairness without sacrificing the effectiveness of s 31A.
3.3 Emergency incidents

Section 30 of NEMA provides for the control of emergency incidents.83 It imposes vari-
ous duties on the responsible person84 including reporting to specified authorities and to
take all reasonable measures to contain and minimise the effects of the incident, includ-
ing its effects on the environment and any risks posed by the incident to the health,
safety and property of persons; to undertake clean-up procedures; to remedy the effects
of the incident; and to assess the immediate and long-term effects of the incident on the
environment and public health. The relevant authority may direct the responsible person
to take remedial measures. Failure to comply with these duties is an offence.85
In Truck and General Insurance Co Ltd v Verulam Fuel Distributors CC,86 the plaintiff
had made insurance claims arising out of costs incurred in cleaning up fuel spills. The
essential point of dispute was whether the insured had incurred liability for the spills.
79
At para [48].
80
At para [70].
81
At para [72].
82
Act 3 of 2000.
83
An ‘incident’ is an unexpected sudden occurrence, including a major emission, fire or explosion leading
to serious danger to the public or potentially serious pollution of or detriment to the environment, whether
immediate or delayed (s 30).
84
Defined as including includes any person who—
(i) is responsible for the incident;
(ii) owns any hazardous substance involved in the incident; or
(iii) was in control of any hazardous substance involved in the incident at the time of the incident (s 30).
85
Section 30(11). This subsection was inserted by Act 14 of 2009.
86
2007 (2) SA 26 (SCA).

Counsel for the appellant (the insurer) argued, on the basis of the applicability of s 20
of the National Water Act87 and, more pertinently, s 30 of NEMA, that liability does not
arise until the relevant organ of state issues a directive to the polluter or issues an account
for the costs of the clean-up. This argument was based on a rule in Post Office v Norwich
Union Fire Insurance Society Ltd,88 to the effect that the insured is barred from claiming
from the insurer until the former has been found liable and hence suffered a loss.
The court, in the present circumstances, did not agree that this rule ought to apply. The
reason for this is that s 30(4) of NEMA requires the person responsible for pollution to act
‘as soon as reasonably practicable after knowledge of the incident’, and hence,
[f]or the plaintiff to have waited for a direction from an organ of State or for the organ of State
itself to take the measures … and then submit an account to it … might have defeated the very
purpose of sub-s (4), viz to ensure that the effects of the incident are contained and minimised
as soon as reasonably practicable after knowledge of the incident. To suggest that an insured
in the plaintiff’s position should stand by and not act in terms of his/her obligations under the
Environmental Act (sic) is not only contrary to the spirit of that Act, but could result in much
more serious consequences which that Act strives to avoid. A strict application of the Post Office
rule to the facts of this case would result in an absurdity.89
The legal obligation imposed by s 30(4), viz to contain and minimise the effects of an
emergency incident, in the view of the court, constitutes a legal liability in terms of the
applicable policy. Moreover, the court held that ‘ecological damage’, which was alleged
to have occurred in this case, is not distinguishable from other damage specified in the
policy and, had the insurer wished to exclude this kind of damage from the policy, it
ought to have done so expressly.
4. Air pollution
In most countries, air pollution is the largest single environment-related cause of ill-health
among children. In other countries it is the second, after the scarcity of safe water.90 This
is true for South Africa too: ‘medical studies have shown that Soweto’s children suffer
from more asthma and chest colds, and take longer to recover from respiratory diseases,
than do youngsters elsewhere in the country’.91 Not only is air pollution a problem for
children — South Africa has several air pollution ‘hotspots’ and there are significant
air pollution problems emanating from energy generation (through the burning of fos-
sil fuels) coupled with the meteorology of the Eastern Transvaal (now Mpumalanga)
Highveld which gives rise to bad pollution problems in that area.92 Sometimes under-
estimated but also a problem is the practice of domestic coal burning (owing to the lack
87
See below, 169.
88
[1967] 2 QB 363.
89
Truck and General Insurance at para [20].
90
G Tamburlini et al (eds) Children’s health and environment: a review of evidence: a joint report from the
European Environment Agency and the WHO Regional Office for Europe (2002) 44–7 located at www.eea.
europa.eu/en/…/environmental_issue_report_2002_29/eip_29.pdf (accessed 9 May 2011).
91
J Cock & E Koch (eds) Going Green: People, Politics and the Environment (1991) at 4.
92
JG Petrie, YM Burns & W Bray ‘Air pollution’ in RF Fuggle & MA Rabie Environmental Management in
South Africa (1992) 417 at 424; Department of Environment Affairs Air Pollution in South Africa Pamphlet
25 (1990) at 7. See also H von Blottnitz, C Fedorsky & W Bray ‘Air quality’ in HA Strydom & ND King
Fuggle and Rabie’s Environmental Management in South Africa 2 ed (2009) 579 at 623–4.

of electricity).93 These two problems present an interesting Catch–22 situation for South
African policy-makers.
The Atmospheric Pollution Prevention Act94 was the primary national air pollution
legislation until it was repealed by the National Environmental Management: Air Qual-
ity Act.95 It dealt with various matters: control of noxious and offensive gases,96 smoke
pollution,97 dust pollution and emissions from vehicles. For present purposes, only the
control of noxious and offensive gases will be considered. The control system for emis-
sion of these was as follows:
Section 8 provided for the declaration by the Minister of a controlled area, wherein no
scheduled process was to be carried on in any premises without a registration certificate
authorising the carrying on of such process in or on those premises.98 Such certificate was
granted by the Chief Air Pollution Control Officer (‘chief officer’) if he was satisfied that
the best practicable means99 were being adopted for preventing or reducing to a minimum
the escape into the atmosphere of noxious or offensive gases produced or likely to be
produced by the scheduled process in question.100 The criterion of the ‘best practicable
means’ was a subjective assessment by the chief officer of the degree of air cleaning
which could be achieved, taking into account available technologies and the impacts of
cost on the process in question.101 It did not incorporate environmental considerations.
It was, therefore, a flexible requirement and, in practice, was interpreted in collabora-
tion with the industries concerned.102 The flexibility allowed for dealing with changes
in technology. The best practicable means approach differed according to the circum-
stances, which meant that there were no uniform, nationwide standards of air cleanliness.
93
Department of Environment Affairs (n 92) at 7–8.
94
Act 45 of 1965.
95
Act 39 of 2004. Section 60 of the new Act, which repealed the Atmospheric Pollution Prevention Act, came
into effect only on 1 April 2010 (GN 220 in GG 33041 of 1 April 2010), which means that the old Act was
repealed on that date.
96
‘Noxious and offensive gases’ were defined as any of the following groups of compounds when in the
form of gas: hydrocarbons; alcohols; aldehydes; ketones; ethers; esters; phenols; organic acids and their
derivatives; halogens, organic nitrogen, sulphur and halogen compounds; cyanides; cyanogens; ammonia
and its compounds; inorganic acids; fumes containing antimony, arsenic, beryllium, chromium, cobalt,
copper, lead, manganese, mercury, vanadium or zinc or their derivatives; cement works fumes and odours
from purification plants, glue factories, cement works and meat, fish or whale processing factories; and
any other gas, fumes or particulate matter which the Minister may by notice in the Gazette declare to be
noxious or offensive gas for the purpose of this Act; and includes dust from asbestos treatment or mining
in any controlled area which has not been declared a dust control area in terms of s 27 (s 1).
97
See, in this regard, Nature’s Choice Properties (Alrode) (Pty) Ltd v Ekurhuleni Metropolitan Municipality)
2009 ZASCA 90.
98
Section 9(1). Contravention of this section is an offence (s 9(2)).
99
This means, when used with reference to the prevention of the escape of noxious or offensive gases or
the dispersal or suspension of dust in the atmosphere or the emission of fumes by vehicles, includes the
provision and maintenance of the necessary appliances to that end; the effective care and operation of
such appliances; and the adoption of any other methods which, having regard to local conditions and
circumstances, the prevailing extent of technical knowledge and the cost likely to be involved, may be
reasonably practicable and necessary for the protection of any section of the public against the emission of
poisonous or noxious gases, dust or any such fumes (s 1). For further discussion, see Petrie et al (n 92) at
439–40.
100
Section 10(2)(a)(i).
101
Petrie et al (n 92) at 439.
102
Ibid at 440.

Consequently, ‘the degree of industrial pollution tolerated [would] depend almost entirely
upon the discretion of the chief officer’.103 The registration certificate would typically set
certain standards for that process.104
The whole of South Africa was declared a controlled area.105 The Second Schedule
to the Act contained a list of 71 scheduled processes106 which required registration cer-
tificates in order to be carried on. The Act provided that the operation of a scheduled
process without a registration certificate was an offence, but the penalty provided for was
woefully inadequate.107
Consequently, in seeking to enforce the Act, the control department (which was then
the Department of Health and Welfare) decided not to pursue the route of criminal sanc-
tions, but rather to request an interdict requiring the cessation of activities until such time
as they were properly authorised. In Minister of Health and Welfare v Woodcarb (Pty)
Ltd,108 the Minister applied for an interdict to restrain conduct which contravened the
prohibition of the carrying on of a scheduled process in a controlled area. The respond-
ent argued that the Minister was precluded from enforcing the legislation by means of
interdict because the Act already contained an enforcement mechanism (viz the criminal
penalty) and this would serve to exclude any alternative remedies. The court was not
impressed with this argument, holding that, since the purpose of the Act was to ‘control
the installation and use of scheduled processes throughout the Republic’, there could,
in the circumstances, be ‘no basis for a contention that the applicant does not need the
remedy of injunction to enable her to control these processes effectively and thereby dis-
charge her duties under the Act’.109 A similar application was made in Minister of Health
v Drums and Pails Reconditioning CC t/a Village Drums and Pails.110 In Tergniet and
Toekoms Action Group v Outeniqua Kreosootpale (Pty) Ltd,111 the court recognised that
the existence of a ‘woefully inadequate’ criminal sanction meant that the requirement of
an interdict that there not be an alternative remedy had been met.
The inadequate penalties were not the only shortcomings of the Act as regards enforce-
ment. One of the biggest problems undermining effective enforcement was the shortage
of inspectors:112 Until quite recently there was apparently only one inspector from the
103
Ibid.
104
See ibid at 441, where it is stated that the certificate typically included details of the appliances and
measures to prevent air pollution, such as specifications for emissions, monitoring and recorder systems
to be installed, specifications on handling and storage of raw and waste material to prevent secondary
dust nuisance, regular reports to the chief officer, the immediate notification of any irregularities or non-
compliance with the process specifications, and the disposal of effluent from purification equipment.
105
106
Examples were chlorine processes (Second Schedule #6), tar processes (Second Schedule #16), power
generation processes (Second Schedule #29) and paper and paper pulp processes (Second Schedule #68).
107
The penalty was, in the case of a first conviction, a fine not exceeding R500 or imprisonment for a period
not exceeding six months, and in the case of a second or subsequent conviction a fine not exceeding R2 000
or imprisonment for a period not exceeding one year: s 46.
108
1996 (3) SA 155 (N).
109
Ibid at 161–2.
110
1997 (3) SA 867 (N).
111
Unreported case 10083/2008 (C).
112
Glazewski (n 68) at 734 states that the Act is poorly enforced ‘largely because too few inspectors have been
appointed, and none at all in some provinces’.

national Department for the whole of KwaZulu-Natal and the Free State. The impact of
this has been that the Department has had to rely on industry-generated emission values
rather than independent monitoring, because of capacity constraints.113 While this was
a serious shortcoming, it was mitigated somewhat by the fact that municipal officials
(usually from the Public Health departments) carried out monitoring, but there was poor
(if any) co-ordination between their efforts and those of the national officials.114
Even if there were more and better co-ordinated inspectors, however, they would have
been faced in many instances with registration conditions that are essentially unenforce-
able. As Glazewski indicates, ‘registration certificates that are issued under the Act are
worded in very general terms, rather than legally enforceable conditions, thus allowing
the registered operations considerable leeway regarding their emissions’.115 The absence
of uniform emission standards, or even emission standards stipulated in the registration
certificates, would render the job of the inspectors rather difficult.
One of the other noteworthy aspects about the Act was that there were no provisions
prohibiting or criminalising the emission, negligent or otherwise, of hazardous emis-
sions. This would mean that victims of hazardous atmospheric emissions, if they did not
die, would have to address the matter by means of the Aquilian action,116 and the state
could not prosecute, other than perhaps for the relatively mundane matter of failure to
comply with the conditions of the registration certificate, if that was the case. If the victim
died, then the polluter could face charges of culpable homicide. The Act, itself, however,
contained no provisions that addressed this issue.
For these and other reasons, it became clear that the Atmospheric Pollution Prevention
Act would have to be overhauled, or even replaced.
4.1 The National Environmental Management: Air Quality Act 39 of 2004

As discussed in Chapter 2, the Constitution allocated various ‘functional areas of legislative
competence’ to different spheres of government. Some of these functional areas are desig-
nated as ‘local government matters’.117 As far as the latter are concerned, the Constitution
empowers municipalities to exercise executive authority in respect of, and administer such
local government matters and to make and administer bylaws for the effective administra-
tion of, the matters which it has the right to administer.118 ‘Air pollution’ is listed in Part
B of Schedule 4 to the Constitution,119 which means it is a matter of concurrent national
and provincial legislative competence — both the national and provincial legislatures are
113
Ibid.
114
Petrie et al (n 92) at 451.
115
Glazewski (n 68) at 598.
116
The South African delictual (tort) remedy, requiring the plaintiff to prove a wrongful act carried out due
to fault on the part of the defendant, and which caused patrimonial loss to the plaintiff.
117
These are the local government matters specified in Part B of Schedules 4 and 5 to the Constitution of the
Republic of South Africa, 1996.
118
Section 156 of the Constitution.
119
‘Environment’ is also listed on Schedule 4, but not as a local government matter.

competent to enact legislation on air pollution120 — and that it is to be administered at local

government level.
This constitutional dimension, coupled with certain other dynamics, led to the decision
to replace the Atmospheric Pollution Act with the new National Environmental Manage-
ment: Air Quality Act.121 According to the memorandum accompanying the Bill, the
rationale for the new legislation was the fact that the old Act was outdated in that: ‘it does
not provide for the allocation of functions of provincial and local government as contem-
plated in the Constitution, it has inadequate compliance and enforcement mechanisms to
apply the Act effectively, and it lacks transparency in decision-making’.
The object of the new Act is—
‘(a) to protect the environment by providing reasonable measures for—
(i) the protection and enhancement of the quality of air in the Republic
(ii) the prevention of air pollution and ecological degradation; and
(iii) securing ecologically sustainable development while promoting justifiable
economic and social development; and
(b) generally to give effect to section 24(b) of the Constitution in order to enhance the
quality of ambient air for the sake of securing an environment that is not harmful
to the health and well-being of people.’122
In Chapter 2, the Act also provides for the setting of frameworks and standards: the
Minister is required to adopt a national framework for achieving the objects of the Act,123
which must provide for national monitoring and information management standards.124
The National Framework for Air Quality Management in the Republic of South Africa
was established in 2007.125 The Minister must, and the MEC and municipalities may,
as the case may be, establish air quality and emission standards for all three tiers of
government.126 The standards operate in a hierarchy whereby there may not be a conflict
between a standard set at a lower level (eg provincial) with a higher level (eg national),
unless the standard set at the lower level is more stringent than that set by the higher
authority.127 Pending establishment of ambient air quality standards by the Minister
(or authorities at other levels of government), a set of air quality standards set out in
Schedule 2 to the Act apply.128
National ambient air quality standards were set for the following substances: sul-
phur dioxide; nitrogen dioxide; particulate matter; ozone; benzene; lead; and carbon
120
While the Constitution’s requirement of co-operative government ought to result in no conflicts between
national and provincial legislation, the Constitution does provide for conflict-settling mechanisms should
such a situation arise: see ss 146–50.
121
Act 39 of 2004.
122
Section 2.
123
Section 7.
124
Section 8.
125
126
Sections 9 (national), 10 (provincial) and 11 (local).
127
Sections 10(2) and 11(2).
128
Section 63.

monoxide.129 Compared to the guidelines proposed by the World Health Organisation,130

some of the proposed South African standards are equivalent, but most are more gener-
ous, some substantially so (note that the WHO guidelines apply only to particulate mat-
ter; ozone; sulphur dioxide and nitrogen dioxide).
The standards are set in accordance with s 9(1) of the Act, which reads:
‘The Minister, by notice in the Gazette—
(a) must identify substances or mixtures of substances in ambient air which, through
ambient concentrations, bioaccumulation, deposition or in any other way, present
a threat to health, well-being or the environment or which the Minister reasonably
believes present such a threat;
(b) must, in respect of each of those substances or mixtures of substances, establish
national standards for ambient air quality, including the permissible amount or
concentration of each such substance or mixture of substances in ambient air; and
(c) may, in respect of each of those substances or mixtures of substances, establish
national standards for emissions from point, non-point or mobile sources.’
Although the Act does not have provisions that directly implement the emission stan-
dards (for example, making it an offence for any person to cause emissions that exceed
the standards), the standards will be used in conjunction with other control mechanisms
in the Act, such as priority areas and licensing of activities requiring licences.
Chapter 3 provides for institutional and planning matters. The Act provides for the
establishment of the National Air Quality Advisory Committee;131 the appointment of air
quality officers;132 and requires those government departments responsible for preparing
plans under NEMA to include in such plans air quality management plans.133 Such plans
must also be included in municipalities’ integrated development plans.134
The standards mentioned above are relevant in respect of the declaration of priority
areas. The Minister or MEC may, by notice in the Gazette, declare an area to be a priority
area if the Minister or MEC reasonably believes that ambient air quality standards are
being, or may be, exceeded in the area, or any other situation exists which is causing, or
may cause, a significant negative impact on air quality in the area; and the area requires
specific air quality management action to rectify the situation.135 The Act requires the
establishment of an air quality management plan for the area.136 The Vaal Triangle Air-
shed was declared a priority area in April 2006,137 and the Highveld in November 2007.138
Regulations for implementing and enforcing the Vaal Triangle Priority Area Air Quality
Management Plan appeared in 2009, requiring emission reduction strategies by the end
129
130
Available at http://www.who.int/phe/health_topics/outdoorair_aqg/en/index.html (accessed 27 February
2011).
131
Section 13.
132
Section 14.
133
Section 15.
134
See above 159.
135
Section 18.
136
Section 19.
137
GN 365 in GG 28732 of 21 April 2006.
138

of June 2014, which must be reviewed every five years.139 At the same time, the Vaal
Triangle Airshed Priority Area Air Quality Management Plan was also published.140
One of the pivotal aspects of the Act requires the listing by the Minister or MEC141 of
activities resulting in atmospheric emissions142 which are reasonably believed to have or
may have a significant detrimental effect on the environment, including health, social
conditions, economic conditions, ecological conditions or cultural heritage.143 The publi-
cation of the list must be accompanied by, inter alia, the following: the establishment of
minimum emission standards in respect of a substance or mixture of substances resulting
from a listed activity and identified in the notice, including the permissible amount, vol-
ume, emission rate or concentration of that substance or mixture of substances that may
be emitted; and the manner in which measurements of such emissions must be carried
out.144 The consequence of listing is that no person may without a provisional atmos-
pheric emission licence or an atmospheric emission licence conduct an activity listed on
the national list anywhere in the Republic; or listed on the list applicable in a province
anywhere in that province.145 Contravention of this section is an offence,146 punishable (in
case of a first offence) by either a R 5 million fine or imprisonment for a period of five
years or both.147
In March 2010, the Minister published such a list, accompanied by minimum emis-
sion standards for these activities, as required by s 21(3).148 Part 1 deals with definitions,
so the first substantive part of the notice (Part 2) addresses technical issues relating to
measurement, compliance monitoring and reporting requirements. Part 3 deals with the
minimum emission standards for nine categories of emitting activities, incorporating a
total of 58 activities.
The categories are as follows: combustion installations; petroleum industry — the pro-
duction of gaseous and liquid fuels as well as petrochemicals from crude oil, coal, gas or
biomass; carbonisation and coal gasification; metallurgical industry; mineral processing,
storage and handling; organic chemicals industry; inorganic chemicals industry; disposal
of hazardous and general waste; pulp and paper manufacturing industries, including by-
products recovery; and animal matter processing.
Some examples of specific activities covered are industrial fuel oil recyclers, tar pro-
duction, foundries, cement production, and the primary production of chemical fertilizer.
By way of comparison, there were 72 ‘scheduled processes’ under the Atmospheric Pol-
lution Prevention Act (APPA), (essentially the same concept as the identified activities
under the new Act) and there are several that are on both lists.
139
GN R614 in GG 32254 of 29 May 2009.
140
GN R613 in GG 32263 of 28 May 2009.
141
An MEC is a ‘Member of Executive Council’ for a province — essentially a provincial Minister. The
MEC’s listing would apply only in that province, whereas the Minister’s list would be national.
142
Defined in s 1 as ‘any emission or entrainment process emanating from a point, non-point or mobile source
that results in air pollution’.
143
Section 21.
144
Section 21(3).
145
Section 22.
146
Section 51(1)(a).
147
Section 52 (1).
148
GN 248 in GG 33064 of 31 March 2010.

Whereas APPA did not provide for emission standards, since each scheduled process
would operate in terms of conditions set out in its registration certificate, the new identi-
fied activities have minimum emission standards which are set out in the notice. The
substances for which standards are set most frequently in the notice (there are different
types of standards depending on the activity in question) are particulate matter, sulphur
dioxide, oxides of nitrogen, volatile organic compounds, and carbon monoxide. Other
substances for which standards are set for particular activities include hydrogen sulphide,
poly aromatic hydrocarbons, fluorides, ammonia, lead, mercury, dioxins, chlorine, vana-
dium, furans, dustfall, hydrogen chloride, and hydrogen fluoride. A typical set of stand-
ards for an activity sets the standards expressed in mg/Nm3 under normal conditions,
and contains both new and existing standards. In most cases, the new standards are more
stringent than existing ones.
The standards mentioned above are also relevant to the granting of atmospheric emis-
sion licences. The Act provides that the licensing authority (a municipal authority)149 must
take into account ‘all relevant factors’, including:
‘(a) any applicable minimum standards set for ambient air and point source emissions
that have been determined in terms of this Act;
(b) the pollution being or likely to be caused by the carrying out of the listed activ-
ity applied for and the effect or likely effect of that pollution on the environment,
including health, social conditions, economic conditions, cultural heritage and
ambient air quality;
(c) the best practicable environmental options available that could be taken—
(i) to prevent, control, abate or mitigate that pollution; and
(ii) to protect the environment, including health, social conditions, economic
conditions, cultural heritage and ambient air quality, from harm as a result
of that pollution;
(d) section 24 of the National Environmental Management Act and section 22 of the
Environment Conservation Act and any applicable notice issued or regulation
made pursuant to those sections;150
(e) any relevant tradable emission scheme;
(f) whether the applicant is a fit and proper person as contemplated in section 49;151
(g) the applicant’s submissions;
(h) any submissions from organs of state, interested persons and the public; and
(i) any guidelines issued by the Minister or MEC relating to the performance by
licensing authorities of their functions.’152
This compares favourably with the old Act, which relied on the ‘best practicable means’
criterion, which had little concern with the environment and revolved more around eco-
nomics.
149
In terms of s 36, save in the exceptional circumstances delineated in that section.
150
These sections require authorisation of identified (listed) activities, based on assessment of their envi-
ronmental impact. Section 22 of the Environment Conservation Act, which was in force at the time of the
promulgation of the Air Quality Act, has subsequently been repealed.
151
Discussed below.
152
Section 39.

The licensing authority may either grant or refuse an application. A decision to grant
an application153 must ‘be consistent with’ the following:
‘(a) this Act and any other applicable national or provincial legislation;
(b) any applicable national or provincial environmental management policies;154
(c) section 24 of the National Environmental Management Act and section 22 of the
Environment Conservation Act and any applicable notice issued or regulation
made pursuant to those sections;
(d) the national environmental management principles set out in section 2 of the
National Environmental Management Act;
(e) any transitional and other special arrangements contemplated in section 21(3)(b);
(f) any minimum standards for atmospheric emissions of identified substances or
mixtures of substances as contemplated in section 21(3);
(g) any applicable pollution prevention plan contemplated in section 29;155
(h) the objectives of any applicable air quality management plan; and
(i) any ambient air quality or emission standards that have been determined in terms
of this Act.’156
The licence ‘must specify’:
‘(a)
the activity in respect of which it is issued;
(b) the premises in respect of which it is issued;
(c) the person to whom it is issued;
(d) the period for which the licence is issued;
(e) the name of the licensing authority;
(f) the periods at which the licence may be reviewed;
(g) the maximum allowed amount, volume, emission rate or concentration of pollut-
ants that may be discharged in the atmosphere—
(i) under normal working conditions; and
(ii) under normal start-up, maintenance and shut-down conditions;
(h) any other operating requirements relating to atmospheric discharges, including
non-point source or fugitive emissions;
(i) point source emission measurement and reporting requirements;
153
The Act specifically refers to a ‘decision to grant an application’. It is not immediately clear whether this
suggests that a decision to refuse an application is not required to be ‘consistent with’ the stated criteria.
154
These are policies required by Chapter 3 of the National Environmental Management Act 107 of 1998.
155
Section 29 provides:
‘(1) The Minister or MEC may, by notice in the Gazette—
(a) declare any substance contributing to air pollution as a priority air pollutant; and
(b) require persons falling within a category specified in the notice to prepare, submit to the Min-
ister or MEC for approval, and implement pollution prevention plans in respect of a substance
declared as a priority air pollutant in terms of paragraph (a).
(2) The Minister or MEC may, by written notice to a person conducting a listed activity which involves
the emission of a substance declared as a priority air pollutant, require that person to prepare, submit
to the Minister or MEC for approval and implement a pollution prevention plan, whether or not that
person falls within a category specified in terms of sub-s (1)(b).
(3) Pollution prevention plans must comply with such requirements as may be prescribed by the Minis-
ter or MEC’.
156
Section 40(2).

(j) on-site ambient air quality measurement and reporting requirements;

(k) penalties for non-compliance;
(l) greenhouse gas emission measurement and reporting requirements; and
(m) any other matters which are necessary for the protection or enforcement of air
quality.’157
The licensing authority is empowered to vary the licence if, inter alia, it is necessary or
desirable to prevent deterioration of ambient air quality or necessary and desirable for the
purposes of achieving ambient air quality standards.158
An air quality officer may require the holder of a provisional atmospheric emission
licence or an atmospheric emission licence to designate an emission control officer, hav-
ing regard to the size and nature of the listed activity for which the licence was granted.159
The Act also provides for the declaration of controlled emitters — appliances or
activities that result in atmospheric emissions which, through ambient concentrations,
bioaccumulation, deposition or in any other way, present a threat to health or the environ-
ment or which the Minister or MEC reasonably believes presents such a threat.160 In a
similar way, controlled fuels may also be declared.161 Controlled emitters and fuels will
be controlled by means of the appropriate standards. Other measures provided for include
pollution prevention plans,162 atmospheric impact reports,163 recognition programmes,164
dust control measures,165 mining rehabilitation,166 noise control167 and control of offensive
odours.168
Chapter 6 of the Act provides for transboundary air pollution matters, which are the
responsibility of the Minister. The Minister may make regulations addressing harmful
transboundary effects.
Offences and penalties are provided for in Chapter 7, with a maximum penalty of ten
years’ imprisonment or a maximum fine of R10 million. One of the talking-points of the
old Act was the inadequacy of the penalties and this has been addressed in the new Act.
The Act does not make it an offence for a person to release an emission that is harmful
to health or causes injury, which was also one of the shortcomings of the previous Act.
The commencement date of the Act was proclaimed as 11 September 2005,169 except
for certain specified sections, including those dealing with listing of activities result-
ing in atmospheric emissions,170 Chapter 5 of the Act dealing with licensing of listed
157
Section 43.
158
Section 46(1).
159
Section 48.
160
Section 23.
161
Section 26.
162
Section 29.
163
Section 30.
164
Section 31.
165
Section 32.
166
Section 33.
167
Section 34.
168
Section 35.
169
170
Sections 21 and 22.

activities,171 and offences relating to emissions licences,172 commenced on 1 April 2010.173

There were certain transitional arrangements which are no longer relevant given that the
vast majority of the Act’s provisions have come into effect.
One of the important innovations (in the South African sense) that the new Act intro-
duces is air quality standards, which are more ‘user-friendly’, particularly for communi-
ties who feel that they are victims of excessive air pollution. The main concerns are that,
as with much of South Africa’s environmental legislation, most of the operative aspects
of the Act rely upon regulations, which can be delayed. Moreover, there must be concern
over the important responsibilities being allocated to municipalities, which are often bat-
tling to deliver on even more mundane duties. Given that most of the pollution problems
would be more likely to be encountered in the bigger, richer municipalities this may not
be as big a concern as it seems at first glance, but this is a challenge that must be met
for the Act to be implemented properly. A reading of Hichange Investments (Pty) Ltd v
Cape Produce Co (Pty) Ltd t/a Pelts Products174 reveals how ineffective the old legislative
regime was and it is hoped that the new Act heralds something much better.
Section 46(1) of NEMA allows for the establishment of model environmental manage-
ment by-laws. In terms of this section, read with the Air Quality Act, a Model Air Quality
Management By-law was published ‘for easy adoption and adaptation by municipali-
ties’.175 The model by-law (which has to be implemented by municipalities following the
usual legislative process, and which may be adapted for the use of the municipality in
question) contains provisions relating to the following: local emission standards; motor
vehicle emissions; small boilers and controlled activities. The types of activities that
fall under ‘controlled activities’ are dust emissions; emissions caused by open burning;
emissions caused by the burning of industrial waste, domestic waste and garden waste
in waste bins or skips on any land or premises; sugar cane burning emissions; emis-
sions caused by tyre burning and burning of rubber products and cables in open spaces;
pesticide spraying emissions; spray painting emissions; sand blasting emissions; noise
pollution management; and emissions that cause a nuisance.
Finally, the Health Act176 can also potentially be used in cases of air pollution. The
Act provides for a nuisance, which includes several types of air pollution nuisance.177
171
Sections 36–49 inclusive.
172
Section 51(1)(a), (e), (f ) and 51(3).
173
GN 220 in GG 33041 of 26 March 2010.
174
2004 (2) SA 393 (E).
175
GN 579 in GG 33342 of 2 July 2010.
176
Act 63 of 1977.
177
In terms of s 1, ‘nuisance’ means, inter alia,
‘(f ) any factory or industrial or business premises not kept in a cleanly state and free from offensive
smells arising from any drain, watercloset, earthcloset, urinal or any other source, or not ventilated
so as to destroy or render harmless and inoffensive as far as practicable any gases, vapours, dust or
other impurities generated, or so overcrowded or so badly lighted or ventilated as to be injurious or
dangerous to the health of those employed therein or thereon;
(g) any factory or industrial or business premises causing or giving rise to smells or effluvia which are
offensive or which are injurious or dangerous to health; and
(i) any other activity, condition or thing declared to be a nuisance by the Minister in terms of the provi-
sions of section 39(2).’

The Minister may make regulations regulating, controlling, restricting or prohibiting any
activity, condition or thing which constitutes a nuisance in terms of this Act.178
5. Pollution of fresh water

The problems facing South Africa in respect of water quality are discussed in Chapter 4.179
5.1 National Water Act

Pollution of fresh water is primarily regulated by the National Water Act.180 One of the
objectives of the Act is the reduction and prevention of pollution and degradation of water
resources.181 To this end, s 19 deals with pollution prevention. This section is similar to
s 28 of NEMA,182 in that it requires an owner of land, a person in control of land or a per-
son who occupies or uses the land on which any activity or process is or was performed
or undertaken, or any other situation exists, which causes, has caused or is likely to cause
pollution of a water resource, to take all reasonable measures183 to prevent any such pol-
lution from occurring, continuing or recurring. A catchment management agency (CMA)
may direct a person who fails to take such measures to take specified measures within a
specified time. Failure to comply entitles the CMA to take the measures itself. It may then
claim the costs jointly and severally from:
‘(a) Any person who is or was responsible for, or who directly or indirectly contrib-
uted to, the pollution or the potential pollution;
(b) the owner of the land at the time when the pollution or the potential for pollution
occurred, or that owner’s successor-in-title;
(c) the person in control of the land or any person who has a right to use the land at
the time when—
(i) the activity or the process is or was performed or undertaken; or
(ii) the situation came about; or
(d) any person who negligently failed to prevent—
(i) the activity or the process being performed or undertaken; or
(ii) the situation from coming about.’184
178
Section 39(1).
179
See above, 92ff.
180
Act 36 of 1998.
181
Section 2(h).
182
See discussion above, 149.
183
Including measures to:
(a) cease, modify or control any act or process causing the pollution;
(b) comply with any prescribed waste standard or management practice;
(c) contain or prevent the movement of pollutants;
(d) eliminate any source of the pollution;
(e) remedy the effects of the pollution; and
(f ) remedy the effects of any disturbance to the bed and banks of a watercourse (s 19(2)).
184
Section 19(5).

This is far less complicated than the liability provision in s 28 of NEMA, partly because
it provides for joint and several liability.185
The interpretation of s 19 was the central issue in Harmony Gold Mining Co Ltd v
Regional Director: Free State, Department Water Affairs and Forestry.186 The appellant,
Harmony, is one of five companies with mines in the Klerksdorp-Orkney-Stilfontein-
Hartebeesfontein (KOSH) basin of the North West province. Three of the five mines (not
Harmony’s) are defunct and the cause of the ultimate dispute followed the liquidation of
one of the mining companies and the consequent threat of the cessation of dewatering of
that mine (which would lead to flooding of the applicant’s mine as well as severe water
pollution problems).
As a result of this threat (and while one of the companies, AngloGold, was applying
for an order requiring the Minister of Water Affairs and Forestry to direct the companies
in control of the three defunct mines to continue pumping water from them), the first
respondent (Regional Director) issued two directives in terms of s 19(3) of the Act. The
directives (the second of which was essentially an amplification of the first) required Har-
mony to pump water from its shafts and, in addition, to share in the cost (together with
AngloGold and DRD, the controlling company of two of the defunct mines) of pumping
water from the disused shafts.
Harmony was aggrieved by the latter aspect of the directive and challenged it
unsuccessfully in the High Court on the basis, essentially, that it was not authorised
by s 19. The matter then came on appeal to the SCA. In essence, Harmony’s argument
was that s 19 ‘does not require of … persons [referred to in s 19(1)] that they take, or
pay for, anti-pollution measures on another’s land’.187 The crux of Harmony’s argu-
ment (according to the court) was that the measures referred to in this section could
not lawfully be taken beyond the boundaries of Harmony’s land. The court, however,
concluded that:
The legislature intended by the term ‘reasonable measures’ to lay down a flexible test depend-
ent on the circumstances of each case. On the facts here it was in my view a reasonable anti-
pollution measure to take steps to prevent groundwater from the defunct mines reaching the
active ones. The constitutional and statutory anti-pollution objectives would be obstructed if
the measures required of the persons referred to in s 19(1) were limited to measures on the land
mentioned in that subsection. If the choice were between an interpretation confining preventive
measures to one’s own land and a construction without that limitation it is clear that the latter
interpretation would be consistent with the purpose of the Constitution and the Act and the
former not.188
Consequently, the appeal was dismissed.
185
The Act does provide for apportionment in the case of more than one liable party, at the request of any of
those persons, but such apportionment does not relieve any of them of their joint and several liability for
the full amount of the costs (s 19(8)).
186
[2006] SCA 65 (RSA). See Louis J Kotzé & Niel Lubbe ‘How (not) to silence a spring: The Stilfontein saga
in three parts’ (2009) 16 SAJELP 49.
187
Harmony (n 186) at para [15].
188
Ibid at para [33].

The National Water Act also provides in s 20 for the control of emergency incidents, in
broadly similar terms to s 30 of NEMA.189
One of the central features of the Act is the concept of ‘water use’ and certain activities
which are included in the definition of water use are activities which pollute or are likely
to pollute water resources: discharging waste or water containing waste into a water
resource through a pipe, canal, sewer, sea outfall or other conduit; disposing of waste in a
manner which may have a detrimental impact on a water resource; and disposing in any
manner of water which contains waste from, or which has been heated in, any industrial
or power generation process.190 A water use requires a licence, unless it falls under one of
the exceptions.191 This is important in the context of the emission of trade effluent, which
is discussed below.
The Act also makes it an offence to unlawfully and intentionally or negligently commit
any act or omission which pollutes or is likely to pollute a water resource,192 or which
detrimentally affects or is likely to affect a water resource.193 The Act defines ‘pollution’
as the direct or indirect alteration of the physical, chemical or biological properties of a
water resource so as to make it less fit for any beneficial purpose for which it may reason-
ably be expected to be used; or harmful or potentially harmful to the welfare, health or
safety of human beings; to any aquatic or non-aquatic organisms; to the resource quality;
or to property.194 This is an improvement on the definition of ‘pollute’ in the 1956 Water
Act, which required knowledge of the quality of the water before the act of pollution.195
The penalty for contravention of s 151 is a fine or imprisonment for a period not exceed-
ing five years, or to both a fine and such imprisonment and, in the case of a second or
subsequent conviction, to a fine or imprisonment for a period not exceeding ten years or
to both a fine and such imprisonment.196
5.2 Disposal of trade effluent

The Water Services Act197 provides in s 7 that no person may dispose of industrial efflu-
ent in any manner other than that approved by the water services provider nominated by
the water services authority having jurisdiction in the area in question.198 No approval
given by a water services authority under this section relieves anyone from complying
with any other law relating to the use and conservation of water and water resources; or
the disposal of effluent.199 Section 9(1) provides that the Minister may, from time to time,
prescribe compulsory national standards relating to, inter alia, the quality of water taken
189
Discussed above, 155.
190
Section 21(f ), (g) and (h) respectively.
191
192
Section 151(1)(i).
193
Section 151(1)(j).
194
Section 1.
195
See discussion in Michael Kidd Environmental Law: A South African Guide at 92.
196
Section 151(2).
197
Act 108 of 1997.
198
Section 7(2).
199
Section 7(4).

from or discharged into any water services or water resource system. Finally, in s 21 it is
provided that a water services authority which:
‘(a) provides water for industrial use; or
(b) controls a system through which industrial effluent is disposed of, must make
bylaws providing for at least—
(i) the standards of service;
(ii) the technical conditions of provision and disposal;
(iii) the determination and structure of tariffs;
(iv) the payment and collection of money due; and
(v) the circumstances under which the provision and disposal may be limited or
prohibited.’
As indicated above, water use in terms of the National Water Act includes taking water
from a water resource; discharging waste or water containing waste into a water resource;
disposing of waste in a manner which may detrimentally impact on a water resource; and
disposing in any manner of water which contains waste from, or which has been heated
in, any industrial or power generation process. Section 22 of that Act provides that water
use requires a licence unless it is permissible under Schedule 1; permissible as a continu-
ation of an existing lawful use; or permissible in terms of a general authorisation issued
under s 39. Schedule 1 includes as a permissible use the discharge of waste or water con-
taining waste, or run-off water, including stormwater from any residential, recreational,
commercial or industrial site, into a canal, sea outfall or other conduit controlled by
another person authorised to undertake the purification, treatment or disposal of waste
or water containing waste, subject to the approval of the person controlling the canal, sea
outfall or other conduit. A sewer would fall under the ambit of ‘other conduit’. This means
that, provided the person disposing of effluent has the permission of the body controlling
the sewerage system, the effluent may be discharged into the sewers. This is typically
regulated by means of municipal by-laws,200 which provide for effluent standards and
tariffs. In many cases, this would require persons disposing of effluent to carry out on-
site purification before discharging it into the sewers, in order to comply with the effluent
standards. Most industries would operate along these lines.
In the case of those persons who discharge effluent directly into a water resource (for
example, water purification works), they would be subject to the relevant general authori-
sations under s 39.201 In terms of part 3 of the authorisations, the discharge of waste or
water containing waste into a water resource through a pipe, canal, sewer, or other con-
duit; and disposing in any manner of water which contains waste from, or which has been
heated in, any industrial or power generation process is authorised (ie anyone can do this
without a permit or licence). There are certain conditions imposed on this authorisation,
which, in summary, require that up to 2000 m3 of wastewater per day may be discharged
into a water resource, subject to certain requirements set out in the wastewater limit val-
ues table (essentially uniform effluent standards). The requirements differ according to
whether the water resource appears in Table 3.4 or not. Those water resources which are
200
For example, the Pietermaritzburg-Msunduzi Industrial Effluent Bylaws (MN 93 of 19 November 1998)
and Durban Sewage Disposal Bylaws (MN 27 of 13 May 1999).
201
GN 1191 in GG 20526 of 8 October 1999.

in the table require more stringent standards. A person who discharges waste in accord-
ance with this authorisation is required to register as a water user, and must keep records
of discharge in accordance with reg 3.9(1).
Should a person be discharging more than 2000 m3 of wastewater per day into a water
resource, he or she would require a licence in terms of s 22 of the National Water Act.
5.3 Other legislation addressing pollution of fresh water

In terms of the Health Act,202 the Minister of Health may delegate certain responsibilities
to local authorities. Every local authority must adopt all lawful, necessary and reasonably
practicable measures to prevent the occurrence within its district of any nuisance, unhy-
gienic condition, offensive condition, or other condition which will or could be harmful
or dangerous to the health of any person within its district or the district of any other local
authority, or, where a nuisance or condition has occurred, to abate, or cause to be abated,
such nuisance, or remedy, or cause to be remedied, such condition, as the case may be.203
A local authority must also prevent the pollution of any water intended for the use of
the inhabitants of its district, irrespective of whether such water is obtained from sources
within or outside its district, or purify water which has become so polluted.204 The Min-
ister also has power to make regulations controlling water pollution.205 Three provincial
nature conservation ordinances also have provisions prohibiting pollution in so far as it
affects aquatic life (ie fish and other resources).206
The Conservation of Agricultural Resources Act207 also regulates water pollution from
farming operations. The Minister is empowered to prescribe control measures in this
regard,208 and officials are empowered to enter upon any land in order, inter alia, to deter-
mine whether and to what extent the water sources on that land are polluted on account of
farming methods or have become weaker or have ceased to exist.209
Under the Water Act210 a set of regulations provided for water pollution offences aris-
ing out of mining operations.211 These provided for, inter alia, the prevention of water
pollution,212 failure to prevent run-off,213 failure to protect waterways,214 failure to take
202
Act 63 of 1977.
203
Section 20(1)(b).
204
Section 20(1)(c).
205
Sections 34, 36A, 37, 38, 39. No such regulations have been made.
206
Transvaal Nature Conservation Ordinance 12 of 1983 ss 1(lx) and 84; Cape Nature Conservation Ordi-
nance 19 of 1974 s 48 and Natal Nature Conservation Ordinance 15 of 1974 ss 152 and 208(1)(b).
207
Act 43 of 1983.
208
Section 6(1)(n).
209
Section 18(1)(e).
210
Act 54 of 1956.
211
Section 26. See GN R287 in GG 4989 of 20 February 1976. These regulations remain in force by virtue
of s 163(4) of the National Water Act, which provides that any regulation made under a law repealed by
this Act remains in force and is considered to have been made under this Act to the extent that it is not
inconsistent with this Act; and until it is repealed by the Minister under this Act.
212
Regulation 6.1.
213
Regulation 7.
214
Regulation 9.

measures to prevent extraneous liquid from entering waterways,215 the siting of dumps,
slimes dams, etc,216 and the failure to repair dumps or slimes dams.217
There was a set of regulations in terms of the Mines and Works Act.218 This Act was
repealed by the 1991 Minerals Act, which provided that regulations made under the
Mines and Works Act would remain in force.219 The Minerals Act has subsequently been
repealed by the Mineral and Petroleum Resources Development Act,220 which does not
contain a clause preserving the validity of regulations valid under the Minerals Act. It
would appear, therefore, that these regulations are no longer in force. For the record,
the Mines and Works regulations addressed, inter alia, fencing off polluted water,221 the
escape of polluted water,222 the returning of impure effluent to water,223 the establishment
of dumps or slimes dams on the bank of watercourses,224 and the failure to prevent escape
of oil.225
6. Marine pollution
South African marine pollution control law is largely based on international conventions.
In order to appreciate the local law, therefore, it is necessary to examine the relevant
international law.
6.1 International marine pollution conventions

Apart from the 1958 Convention on the High Seas and the 1982 Law of the Sea Con-
vention (LOSC), which address marine pollution issues, there are several international
conventions which have marine pollution as their primary focus. South Africa is a party
to most of these. The list below indicates the conventions to which South Africa is a party,
and the South African legislation that gives effect to the convention:
(i) The International Convention for the Prevention of Pollution from Ships 1973226
(the so-called MARPOL Convention), incorporated into municipal law by the Ma-
rine Pollution (Prevention of Pollution from Ships) Act 2 of 1986.227
(ii) The International Convention relating to Intervention on the High Seas in Cases of
215
Regulation 10.
216
Regulation 16.1.
217
Regulation 21.2.
218
Act 27 of 1956, s 12. GN R537 in GG 6892 of 21 March 1980.
219
Section 68(1) of the Minerals Act 50 of 1991. Any regulation made under the repealed Act which was in
force immediately prior to the commencement of the Act shall, notwithstanding the repeal of the said Act,
remain in force until amended or repealed under s 63: s 68(2).
220
Act 28 of 2002.
221
Regulation 5.9.1.
222
Regulation 5.9.2.
223
Regulation 5.14.1 (1980 amendment).
224
Regulation 5.14.3 (1980 amendment) read with s 60(2) of Act 50 of 1991.
225
Regulation 5.15 (1980 amendment).
226
The MARPOL Convention: discussed above, 62.
227
The Convention and Protocol appear in the Schedule to the Act. This Act was formerly called the Interna-
tional Convention for the Prevention of Pollution from Ships Act.

Oil Pollution Casualties 1969,228 incorporated into our law by the Marine Pollution
(Intervention) Act 64 of 1987.229
(iii) The International Convention on Civil Liability for Oil Pollution Damage 1969,230
some of the provisions of which are given effect to by the Marine Pollution (Con-
trol and Civil Liability) Act 6 of 1981.231
(iv) The Convention on the Prevention of Marine Pollution by Dumping of Wastes and
other Matter 1972,232 which was implemented by the Dumping at Sea Control Act
73 of 1980. The 1972 convention was superseded by the 1996 Protocol to the Lon-
don Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter 1972, which came into effect in 2006. The main change between the
original convention and the protocol was the movement from a conventional listing
approach (the dumping of certain, listed substances was prohibited) to a so-called
reverse listing approach. This approach requires the prohibition of dumping of any
substance that is not listed on Annex 1 of the protocol. Any waste on the ‘reverse
list’ may only be dumped subject to permit. The 1996 protocol is implemented by
the National Environmental Management: Integrated Coastal Management Act.233
6.2 South African marine pollution control legislation

The Dumping at Sea Control Act
The Dumping at Sea Control Act was South Africa’s domestic legislation giving effect to
the London Convention. Due to the replacement of the convention by the 1996 protocol
(see above), the Act was no longer appropriate. It was repealed by the National Environ-
mental Management: Integrated Coastal Management Act.234
The National Environmental Management: Integrated Coastal Management Act

The Act contains detailed provisions relating to marine and coastal pollution control in
Chapter 8. Authorisation is required for the discharge of effluent into coastal waters,235
and there is a prohibition on incineration or dumping at sea,236 unless authorised by
dumping permits.237 Only certain types of waste may be dumped at sea. Schedule 2 of
the Act contains the waste assessment guidelines, for assessing wastes or other mate-
rial for dumping at sea. The Act also makes provision for emergency dumping at sea,238
and requires the Minister, progressively and subject to available resources, to develop a
228
229
The Convention is set out in the Schedule. This was formerly called the International Convention relating
to Intervention on the High Seas in Cases of Oil Pollution Casualties Act.
230
231
Formerly called the Prevention and Combating of Pollution of the Sea by Oil Act.
232
The London Convention: discussed above, 62.
233
Act 24 of 2008. See below, 229ff.
234
Ibid.
235
Section 69.
236
Section 70.
237
Section 71.
238
Section 72.

national action list to provide a mechanism for screening waste and other material on the
basis of their potential effect on human health and the marine environment.239
Marine Pollution (Prevention of Pollution from Ships) Act

The Act provides that the International Convention for the Prevention of Pollution from
Ships (MARPOL Convention)240 shall, subject to the provisions of the Act, apply in the
Republic.241 The convention is aimed at the prevention of pollution of the marine environ-
ment by the discharge of harmful substances or effluents containing such substances.242
The convention contains an extensive set of regulations dealing with prevention of
pollution by oil,243 the control of pollution by noxious liquid substances in bulk,244 and
the prevention of pollution by garbage from ships.245 Article 4 of the convention provides
that any violation of the requirements of the convention shall be prohibited and sanctions
shall be established therefor under the law of the administration 246 of the ship concerned
wherever the violation occurs. If the administration is informed of such a violation and
is satisfied that sufficient evidence is available to enable proceedings to be brought in
respect of the alleged violation, it shall cause such proceedings to be taken as soon as pos-
sible, in accordance with its law. The Act does not provide for sanctions for contravention
of the provisions of the convention.
The Act does, however, provide that the Minister247 may make regulations to give
effect to any provision of the convention as applicable in the Republic.248 No regulation
provides for sanctions for violation of the convention. One set of regulations has been
made, dealing with prevention of pollution by garbage from ships.249 The Act depends
for its practical effectiveness on the passing of regulations, so it is cause for concern that
there has been so little activity in this regard.250
Marine Pollution (Intervention) Act

Administered by the Department of Transport, it allows South Africa to take measures
outside her territorial waters to prevent or otherwise address danger from oil pollution.
239
Section 73.
240
1973 and the 1978 Protocol adopted by the Inter-Governmental Maritime Consultative Organisation
(IMCO) in London on 3 November 1973: see s 1.
241
Section 2(1).
242
Article 1.
243
Annexure I.
244
Annexure II.
245
Annexure V.
246
The government of the state under whose authority the ship is operating. With respect to a ship entitled to
fly a flag of any state, the administration is the government of that state. With respect to fixed or floating
platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast
over which the coastal state exercises sovereign rights for the purposes of exploration and exploitation of
their natural resources, the administration is the government of the coastal state concerned: Article 2.
247
Of Transport: s 1.
248
Section 3(1)(a).
249
GN R1491 in GG 14000 of 29 May 1992.
250
See Report of the Three Committees of the President’s Council (n 15) at 177.

This Act was amended by the Shipping General Amendment Act251 mainly to give effect
to the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by
Substances Other than Oil of 1973.
Marine Pollution (Control and Civil Liability) Act

This Act is in part modelled on (though not incorporating by reference) the 1969 Civil
Liability Convention. The Act also enforces some of the provisions of MARPOL, there-
fore overlapping with the MARPOL Act. It deals with pollution in the ‘prohibited area’,
which is defined as ‘the internal waters, the territorial waters and the exclusive economic
zone and, in relation to an offshore installation, includes the sea within the limits of the
continental shelf’. The Act provides for both civil and criminal liability and places duties
on owners and masters of ships. The principal criminal offence is the discharge of oil into
the sea from a ship, tanker or offshore installation.252 ‘Oil’ is defined in accordance with
the MARPOL Convention regulation.253 The Act contains an important presumption to
the effect that, in the relevant circumstances, if it is proved that there was discharge of a
mixture containing oil, it will be deemed that the mixture contained oil in the required
ratio, unless proved otherwise.254 The criminal provisions in the Act255 have been repealed
by s 28 of the Shipping General Amendment Act,256 but this repeal has yet to come into
force. It is not clear why this is the case. Once it does come into force, the Act would
contain no prohibition on discharge of oil, but deliberate disposal at sea of oil (and other
types of pollution discharge) would still be prohibited by s 2 of the Dumping at Sea
Control Act.
As far as civil liability is concerned, the owner of any ship, tanker or off-shore installa-
tion is liable for any pollution damage caused by discharge of oil from his ship,257 and for
the costs of any measures taken by the Minister to reduce or prevent pollution damage.258
Proof of fault is not required, but there are circumstances where liability will be excluded
or limited.259
The Act empowers the Minister of Transport to take action to prevent oil pollution,
whilst since 1986 the Department of Environmental Affairs has been involved in clean-
ing-up operations once an oil spill has taken place.260
The main criticism levelled at this Act is that it overlaps with the International Conven-
tion for the Prevention of Pollution from Ships (MARPOL) Act in so far as the regula-
tion of operational discharge is concerned. Tied to this criticism is the fact that the Act
251
Act 23 of 1997.
252
Section 2(1). The penalty is a fine not exceeding R200 000 or imprisonment for a period not exceeding five
years or both such fine and such imprisonment: s 30(2)(d).
253
Section 1(1).
254
Section 2(3). See, for the history of this provision, S v Peppas 1977 (2) SA 643 (A), particularly at 653A
et seq, and (1981) 91 House of Assembly Debates column 573 (Wednesday, 4 February 1981). See also
columns 552–3 and 576.
255
Section 2.
256
(n 251).
257
Section 9(1)(a).
258
Section 9(1)(b).
259
See ss 9(3), 9(5), 10 and 11.
260
See JA Lusher & HT Ramsden ‘Water pollution’ in Fuggle & Rabie (n 92) at 477.

addresses the issue of civil liability within the context of the 1969 Civil Liability Conven-
tion, yet makes liability applicable in cases of discharge as defined in the MARPOL
context.261 It has been suggested that the two issues of prevention of oil pollution damage
and liability for oil damage (incorporating, perhaps, the 1971 Fund Convention 262) be
dealt with separately.263
Other legislation
Various other pieces of legislation deal with marine pollution, although not as a primary
focus. The Merchant Shipping Act264 allows the Minister of Transport to take certain
actions in respect of ships in distress or wrecks, in order to prevent pollution.265 Pollu-
tion of harbours is provided for by the Legal Succession to the South African Transport
Services Act.266 The International Health Regulations Act267 provides that all ports have
to have effective waste disposal systems268 and that it is an offence for a Master to eject
anything from a ship into the harbour.269 The Nature Conservation Ordinances of Natal
and the Cape are aimed mainly at fresh water, but they are relevant in that the Nature
and Environmental Conservation Ordinance (Cape)270 prohibits disposal of pollutants in
inland waters,271 but the Ordinance applies to ‘tidal rivers’272 which are part of the sea
according to the Sea-shore Act.273 The Natal Nature Conservation Ordinance274 prohibits
such disposal in ‘any waters’, including the Indian Ocean and any semi-enclosed bay,
estuary and parts of tidal rivers.275
7. Waste on land
For purposes of this book ‘hazardous waste’ will be discussed as a separate topic, which
means that this section focuses on non-hazardous waste and legislation dealing with all
waste, whether hazardous or not.276
261
Report of the Three Committees of the President’s Council (n 15) at 177.
262
International Fund for Compensation for Oil Pollution Damage 1971, to which South Africa is not yet a
party.
263
Report of the Three Committees of the President’s Council (n 15) and Lusher & Ramsden (n 260) 476–7.
264
Act 57 of 1951.
265
Section 304A.
266
Act 9 of 1989, in terms of which regulations dealing with, inter alia, pollution of harbours made under
the now repealed South African Transport Services Act 65 of 1981 are applicable. The regulations can be
found in GN R562 of 26 March 1982.
267
Act 28 of 1974.
268
Article 14(3) of the schedule to the Act.
269
Article 30 of the Schedule to the Act. See also GN R200 in GG 4878 of 24 October 1975.
270
Ord 19 of 1974.
271
Section 48 read with s 85.
272
Section 23.
273
Act 21 of 1935, s 1.
274
Ord 15 of 1974.
275
Sections 183 and 185(1)(a).
276
Several provisions discussed in this section could be used for waste whether hazardous or not. The section
on hazardous waste focuses on legislation which specifically addresses hazardous waste.

7.1 Environment Conservation Act 73 of 1989

This Act (the ECA) was the main legislation regulating waste management until the pro-
visions in the Act relating to waste management were repealed by the National Environ-
mental Management: Waste Act (see below) in 2009. The most important provisions were,
first, s 20, headed ‘Waste management’, which essentially dealt with the permitting and
operation of ‘disposal sites’. Section 24 empowered the Minister to make regulations with
regard to waste management. A brief set of regulations was promulgated dealing with the
application for a disposal site permit,277 and the Minister published directions with regard
to the control and management of general communal and small waste disposal sites.278
Regulations have also been made addressing the use of plastic bags.279 The regulations
essentially prohibit the manufacture, trade and commercial distribution of plastic carrier
bags that do not comply with the requisite specifications in terms of the Standards Act.
These regulations were controversial, raising concerns about job losses. Other regula-
tions made under the Act were regulations for the prohibition of the use, manufacturing,
import and export of asbestos and asbestos-containing materials,280 regulations for waste
tyres,281 and Gauteng Health Care Waste Management Regulations.282
Until the mid–2000s, the control authority for authorising and control of disposal sites
was the Minister of Water Affairs and Forestry but this was transferred to the Minister
of Environmental Affairs and Tourism. The Department of Water Affairs and Forestry
utilised a comprehensive set of guidelines in respect of disposal sites,283 providing for
different classification depending on factors such as the nature and volume of the waste
being disposed of there, for example, whether it is household refuse for the site to be
classified as a G site or whether it is hazardous waste for the site to be classified as an H
site and the maximum quantities of waste stored/treated/disposed/handled at the facility
per day.
The Act also contained provisions relating to littering in ss 19 and 19A.
7.2 National Environmental Management: Waste Act 59 of 2008

Aspects of the management of waste have been regulated by numerous enactments, but
the primary regulatory device prior to the enactment of this Act was the ECA, as briefly
discussed above. In March 2000, the Department of Environmental Affairs and Tourism
produced the White Paper on Integrated Pollution and Waste Management.284 The White
Paper focused less on integration of control and management of waste and pollution in
the ordinarily understood way285 than on the minimisation of waste: the White Paper was
277
GN R1196 in GG 15832 of 8 July 1994. A schedule to the regulations contains a comprehensive application
form which must be completed by applicants.
278
GN 1986 in GG 12703 of 24 August 1990.
279
GN R625 in GG 24839 of 9 May 2003.
280
GN R341 in GG 30904 of 28 March 2008.
281
GN R149 in GG 31901 of 13 February 2009
282
GenN 3035 in PG 372 of 15 September 2004.
283
Department of Water Affairs and Forestry Minimum Requirements for Waste Disposal by Landfill 2 ed
(1998). This edition is still the one used in 2011.
284
GN 227 in GG 20978 of 17 March 2000.
285
See Michael Kidd ‘Integrated pollution control in South Africa: How easy a task?’ (1995) 2 SAJELP 37.

subtitled ‘A Policy on Pollution Prevention, Waste Minimisation, Impact Management

and Remediation’. Work on producing an Act to give effect to the policy commenced
in 2000 and a draft Bill was eventually published in January 2007. Most of the subject
matter covered by the new Act (referred to here as the Waste Act) was not (directly)
covered by the ECA, which essentially just dealt with disposal sites and litter, although
the regulatory powers in that Act could potentially have been used for any issue relating
to waste management.
In the preamble to the Act, the internationally recognised hierarchy of waste manage-
ment is explicitly recognised: ‘sustainable development requires that the generation of
waste is avoided, or where it cannot be avoided, that it is reduced, re-used, recycled or
recovered and only as a last resort treated and safely disposed of’.286 The objects of the
Act, set out in s 2, are:
‘(a) to protect health, well-being and the environment by providing reasonable meas-
ures for—
(i) minimising the consumption of natural resources;
(ii) avoiding and minimising the generation of waste;
(iii) reducing, re-using, recycling and recovering waste;
(iv) treating and safely disposing of waste as a last resort;
(v) preventing pollution and ecological degradation;
(vi) securing ecologically sustainable development while promoting justifiable
economic and social development;
(vii) promoting and ensuring the effective delivery of waste services;
(viii) remediating land where contamination presents, or may present, a signifi-
cant risk of harm to health or the environment: and
(ix) achieving integrated waste management reporting and planning;
(b) to ensure that people are aware of the impact of waste on their health, well-being
and the environment;
(c) to provide for compliance with the measures set out in paragraph (a); and
(d) generally, to give effect to s 24 of the Constitution in order to secure an environ-
ment that is not harmful to health and well-being.’
Broadly, the Act deals with the following aspects: national waste management strategy,
norms and standards; institutional and planning matters; waste management measures
(which contains most of the ‘meat’ of the Act); licensing of waste management measures;
waste information; compliance and enforcement; and the technical and administrative
matters found in most Acts. ‘Waste’ is defined in s 1 as:
‘any substance, whether or not that substance can be reduced, re-used, recycled and
recovered—
(a) that is surplus, unwanted, rejected, discarded, abandoned or disposed of;
(b) which the generator has no further use of for the purposes of production;
(c) that must be treated or disposed of; or
(d) that is identified as a waste by the Minister by notice in the Gazette,
and includes waste generated by the mining, medical or other sector, but—
286
See above, 144.

(i)
a by-product is not considered waste; and
(ii) any portion of waste, once re-used, recycled and recovered, ceases to be
waste[.]’
Chapter 2 of the Act provides for the establishment of a National Waste Management
Strategy, which the Minister must declare within two years of the commencement of s 6.
The strategy, which must be given effect to by any organ of state performing a duty in
terms of this Act or any other legislation regulating waste management, must include the
following:287
‘(a) objectives, plans, guidelines, systems and procedures relating to the protection of
the environment and the generation (including the avoidance and minimisation of
such generation), re-use, recycling, recovery, treatment, disposal, use, control and
management of waste in order to achieve the objects of the Act;
(b) mechanisms, systems and procedures for giving effect to the Republic’s obliga-
tions in terms of relevant international agreements;
(c) practical measures for achieving co-operative governance in waste management
matters;
(d) guidance on raising awareness regarding the impact of waste on health and the
environment;
(e) approaches for securing compliance with the requirements of the Act, including
the monitoring of compliance; and
(f) any other matter that the Minister considers necessary for achieving the objects
of the Act.’
It may include targets for waste reduction.288
Chapter 2 also contains provision for the setting of norms and standards. The Minister
is required to set national norms and standards for the classification of waste; planning
for and provision of waste management services; and storage, treatment and disposal of
waste, including planning and operation of waste treatment and waste disposal facili-
ties.289 The Minister is permitted to set such norms and standards for the minimisation,
re-use, recycling and recovery of waste, including the separation of waste at the point
of generation; extended producer responsibility; regionalisation of waste management
services; the remediation of contaminated land and soil quality; and the setting of tariffs
for municipal waste services.290 It is not clear why a distinction is made between the
mandatory and directory setting of norms and standards.
National Domestic Waste Collection Standards were published in early 2011.291 These
standards seek not only to bring collection services to those who have not previously been
serviced (and there is not a one-size-fits-all approach), but also to improve established
services by improving aspects such as sorting waste at source and facilitating recycling.
The standards will be the responsibility of local government to implement.
287
Section 6(1).
288
Section 6(2).
289
Section 7(1).
290
Section 7(2) and (3).
291
GN 21 in GG 33935 of 21 January 2011: these standards will take effect from 1 February 2011.

In addition to national norms and standards, the relevant MEC is also empowered to
make provincial norms and standards. These must not conflict with the national norms
and standards and must facilitate and advance, inter alia, planning and provisions of
waste management services; regionalisation of waste management services within the
province; minimisation, re-use, recycling and recovery of waste (excluding standards that
may have national implications or significant impact on the national economy); and the
treatment and disposal of waste, including the planning and operation of waste treatment
and disposal facilities, licensed by provincial authorities.292 It is interesting that norms
and standards relating to minimisation, re-use, recycling and recovery of waste have
to be set at provincial level while the power to set such standards is only directory at
national level.
Waste issues in many cases are best addressed at local level, so it is appropriate that
municipalities also have powers to set standards, referred to as waste service standards.293
Municipalities are required to exercise their ‘executive authority to deliver waste man-
agement services’ in a manner that:
●● conforms to the national and provincial norms and standards;
●● integrates their waste management plans with their integrated development plans
(IDPs);
●● ensures access for all to waste services;
●● provides waste services at an affordable price; and
●● ensures sustainable services through effective and efficient management.
Municipalities may also set local standards for waste services. The Minister or MEC,
whenever acting in terms of the Act in relation to a municipality, must seek to support or
strengthen the municipality’s ability or right to perform its functions in relation to waste
management activities.294
Chapter 3 of the Act covers institutional and planning matters. Waste management
officers at three levels of government must be designated in terms of s 10, with the
function of co-ordinating waste management matters within their areas of jurisdiction.
DEAT and the relevant provincial departments are required to prepare integrated waste
management plans.295 Municipalities are required to do so as well, but their plans must
be submitted to the MEC for approval and included in their IDPs. The MEC, if it does
not approve the plan, must remit the plan to the municipality for adjustment where neces-
sary. The mandatory contents of these plans are set out in exhaustive detail in s 12, and
include details relating to situation analysis (eg population and quantities and types of
waste generated), and a description of how the organs of state in question intend to meet
various waste management objectives such as the implementation of waste minimisation,
re-use, recycling and recovery targets and initiatives and giving effect to best environ-
mental practice in respect of waste management. Annual reports on the implementation
of integrated waste management plans must be prepared and submitted for approval to
292
Section 7(3).
293
Section 9.
294
Section 9(4).
295
Section 11.

the relevant authorities, setting out information such as implementation of and compli-
ance with the plan.296
Waste Management Measures, of which there are several, are included in Chapter 4.
This Chapter is subdivided into nine parts, each of which deals with a separate measure.
These are:
●● Priority wastes;
●● General duty in respect of waste management;
●● Reduction, re-use, recycling and recovery of waste;
●● (Listed) waste management activities;
●● Storage, collection and transportation of waste;
●● Treatment, processing and disposal of waste;
●● Industry waste management plans;
●● Contaminated land; and
●● Other measures.
The Minister has the power to declare a waste to be a priority waste if he or she believes
on reasonable grounds that the waste poses a threat to health, well-being or the environ-
ment because of the quantity or composition of the waste and that specific waste manage-
ment measures are required to address the threat; or that the imposition of specific waste
management measures in respect of the waste may improve reduction, re-use, recycling
and recovery rates or reduce health and environmental impacts.297 Such a notice must
specify the waste management measures that must be taken in respect of the priority
waste, which may include a prohibition on the generation of such waste and measures for
the management of that waste.298 Declaration as a priority waste will result in that waste
being prohibited for import, manufacture, processing, sale or export, unless it complies
with specified requirements, including any measures specified in the notice mentioned
above.299
Section 16 imposes duties in respect of waste management: first, a holder of waste
(who is defined in s 1 as a person who imports, generates, stores, accumulates, transports,
processes, treats, or exports waste or disposes of waste) must take all reasonable meas-
ures in terms of s 16(1) to:
‘(a) avoid the generation of waste and where such generation cannot be avoided, to
minimise the toxicity and amounts of waste that are generated;
(b) reduce, re-use, recycle and recover waste;
(c) where waste must be disposed of, ensure that the waste is treated and disposed of
in an environmentally sound manner;
(d) manage the waste in such a manner that it does not endanger health or the envi-
ronment or cause a nuisance through noise, odour or visual impacts;
(e) prevent any employee or any person under his or her supervision from contraven-
ing this Act; and
296
Section 13.
297
Section 14(1).
298
299
Section 15.

(f) prevent the waste from being used for an unauthorised purpose.’
Moreover, a person who sells a product that may be used by the public and that is likely
to result in the generation of hazardous waste must take reasonable steps to inform the
public of the impact of that waste on health and the environment.300 Hazardous waste is
defined as ‘any waste that contains organic or inorganic elements or compounds that may,
owing to the inherent physical, chemical or toxicological characteristics of that waste,
have a detrimental impact on health and the environment’.301 This is a far-reaching provi-
sion, as it is likely to affect numerous products that are everyday purchases, such as bat-
teries, paint, nail varnish remover, fluorescent light tubes and so on.
The measures contemplated in s 16 include measures to investigate, assess and evalu-
ate the impact of the waste in question on health or the environment; to cease, modify
or control any act or process causing the pollution, environmental degradation or harm
to health; to comply with any norm or standard or prescribed management practice; to
eliminate any source of pollution or environmental degradation; and to remedy the effects
of the pollution or environmental degradation.302 The Minister or MEC may also issue
regulations to provide guidance on how to discharge this duty or identify specific require-
ments that must be given effect to.303 The duties imposed in s 16 will in all likelihood
affect numerous people — those who are holders or generators of waste — and because
of this wide range of affected persons one wonders how effectively the requirements of
this section will be enforced.
Reduction, re-use and recycling of waste is certainly something one would expect to
find in the Act and it is dealt with in Part 3 of Chapter 4. Any person who undertakes
an activity involving the reduction, re-use, recycling or recovery of waste must, before
undertaking that activity, ensure that it uses fewer natural resources than would be used
for the disposal of such waste, and to the extent that it is possible, is less harmful to the
environment than the disposal of such waste.304 In addition, the Minister, after consul-
tation with the Minister of Trade and Industry, may require any person to provide for
the reduction, re-use, recycling and recovery of products or components of a product
manufactured or imported by that person; or include a determined percentage of recy-
cled material in a product that is produced, imported or manufactured by that person or
category of persons.305
This part of the Act also provides for extended producer responsibility. The Minis-
ter may identify a product or class of products in respect of which extended producer
responsibility applies; specify the extended producer responsibility measures that must
be taken in respect of that product or class of products; identify the person or category
of persons who must implement such extended producer responsibility measures;306 and
set out the relevant details in respect of the measures contemplated. ‘Extended producer
responsibility measures’ means:
300
Section 16(2).
301
Section 1.
302
Section 16(3).
303
Section 16(4).
304
Section 17(1).
305
Section 17(2).
306
Section 18(1).

‘measures that extend a person’s financial or physical responsibility for a product to the
post-consumer stage of the product, and includes—
(a) waste minimisation programmes;
(b) financial arrangements for any fund that has been established to promote the
reduction, re-use, recycling and recovery of waste;
(c) awareness programmes to inform the public of the impacts of waste emanating
from the product on health and the environment: and
(d) any other measures to reduce the potential impact of the product on health and the
environment.’307
A further measure involves the listing by the Minister of waste management activities
that have, or are likely to have, a detrimental effect on the environment.308 A listed activity
either requires a licence or the notice listing it must set out the requirements or standards
to which that activity must conform.309 Until such time as activities are listed, Schedule 1
applies.310 Schedule 1 contains a list of activities, categorised under the following head-
ings: storage and transfer of waste; recycling and recovery; treatment of waste; disposal
of waste on land; storage, treatment and processing of animal waste; and expansion or
decommissioning of facilities and associated structures or infrastructure.
A list in terms of s 19 was published in 2009.311 Category A activities require a basic
assessment process (as required by Chapter 5 of NEMA). This includes several variations
of storage of waste; re-use, recycling and recovery; treatment of waste; disposal of waste
(the disposal of inert waste in excess of 25 tons and with a total capacity of 25 000 tons,
excluding the disposal of such waste for the purposes of levelling and building which
has been authorised by or under other legislation; the disposal of general waste to land
covering an area of more that 50m2 but less than 200 m2 and with a total capacity not
exceeding 25 000 tons; and the disposal of domestic waste generated on premises in areas
not serviced by the municipal service where the waste disposed does not exceed 500kg
per month); storage, treatment and processing of animal waste; and the construction,
expansion or decommissioning of facilities and associated structures and infrastructure
(as set out in the regulations).
Category B activities require an environmental impact assessment process. These
activities are primarily activities relating to hazardous waste (storage, re-use and
307
Section 1.
308
Section 19(1).
309
Section 20 read with s 19(3).
310
Section 19(4).
311
GN 718 in GG 32368 of 3 July 2009. Shortly before going to press, there was a notice proposing amend-
ments to this list (GN 1113 in GG 33880 of 14 December 2010). The main proposed changes to the activities
themselves are in the nature of threshold changes or stipulation of thresholds where none were require
before. So, for example, where the original list contained in Category B an item referring to the recovery
of hazardous waste in a facility with the capacity to process more than 500kg of waste per day, that amount
has been increased to 1 ton. Most of the changes of this sort are increases (meaning that more will now
fall into Category A). There are some changes in respect of the stipulated measurement — instead of
measurement by amount of waste, the new measurement looks at the size of the facility (in area). The one
completely new item, in Category B, is the treatment of health care risk waste (irrespective of amount).
It would appear that these changes are brought about as a result of experience of using the old list and
assessing the extent of the responsibilities required by the original categorisation.

recycling and treatment) and disposal of waste in larger amounts and in larger areas than
in Category A. Incineration falls under Category B.
Part 5 of Chapter 4 deals with storage, collection and transportation of waste. A person
storing waste must take steps to ensure that waste containers are intact and not corroded
or otherwise unfit for the safe storage of waste; adequate measures are taken to avoid
accidental spillage and leaking; the waste cannot be blown away; nuisances such as odour,
visual impacts and breeding of vectors do not arise; and pollution of the environment
and harm to health are prevented.312 A person who generates waste to be collected by a
municipality must place the waste in an appropriate container and location, unless the
waste is for re-use, recycling or recovery.313 Waste collection services are subject to, inter
alia, equitable allocation to all users and the payment by users of applicable charges.314
The Act prohibits the collection of waste for removal from premises by any person unless
that person is a municipality or municipal service provider or authorised by law to collect
that waste or not prohibited from collecting that waste.315 The Act sets out various duties
for persons transporting waste for gain, including registration where necessary; and the
furnishing of required information.316 The person in question must take all reasonable
steps to prevent spillage or littering from the vehicle, and the transporter, where waste is
being transported for purposes of disposal, must, before offloading waste, ensure that the
facility is authorised to accept waste. In the case of hazardous waste, written confirma-
tion that the waste has been accepted must be obtained.317 In the absence of evidence to
the contrary which raises a reasonable doubt, a person who is in control of a vehicle, or in
a position to control the use of a vehicle, that is used to transport waste for the purpose of
offloading that waste, is considered to knowingly cause that waste to be offloaded at the
location where the waste is deposited.318
Treatment, processing and disposal of waste is the subject of Part 6. There is a prohibi-
tion on unauthorised disposal of waste, meaning without authorisation by law or in a man-
ner that is likely to case pollution of the environment or harm to health and well-being.319
There is an exception in the case of household waste in areas where the municipality does
not collect waste and the waste is disposed of in the most environmentally and economi-
cally feasible manner.320 ‘Disposal’ means the burial, deposit, discharge, abandoning,
dumping, placing or release of any waste into, or onto, any land.321 The prohibition on
unauthorised disposal would therefore cover littering, which is further regulated by s 27,
which provides that the owner of privately owned land to which the public has access must
ensure that sufficient containers or places are provided to contain litter that is discarded
by the public; and that the litter is disposed of before it becomes a nuisance, a ground for
312
Section 21.
313
Section 22.
314
Section 23.
315
Section 24.
316
Section 25.
317
318
Section 25(5).
319
Section 26(1).
320
Section 26(2).
321
Section 1.

a complaint or causes a negative impact on the environment.322 Littering is prohibited in

that no person may throw, drop, deposit, spill or in any other way discard any litter into
or onto any public place, land, vacant erf, stream, watercourse, street or road, or on any
place to which the general public has access, except in a container or a place specifically
provided for that purpose, or allow any person under that person’s control to do any of
these acts.323
Part 7 deals with industry waste management plans. The Minister may require a per-
son or industry to prepare and submit an industry waste management plan if its activity
results in the generation of waste that affects more than one province or where the activ-
ity is conducted in more than one province.324 The MEC may do likewise in respect of
an activity within that province that generates waste, which is a potentially enormous
category of activities. An organ of state, other than a municipality, may also be required
to prepare such a plan.325 The contents of the plan are set out in s 30, which includes, inter
alia, information relating to the amount of waste generated, measures to prevent pollution
or ecological degradation, and targets for waste minimisation. The plan must be approved
by the Minister or MEC,326 and reviewed periodically.327 If a plan is rejected more than
once or if there is a failure to submit a plan, the authority in question may specify the
waste management measures to be taken by that person.328
Measures addressing contaminated land are found in all well-developed systems of
environmental law, and have been noticeable by their absence in South African law.
Section 28 of NEMA is unsuitable for such use,329 but this is now addressed (although
not very well, in my view) in Part 8 of Chapter 4. This part explicitly applies retrospec-
tively — ‘even if the contamination occurred before the commencement’ of the Act.330
The word ‘contaminated’ is defined in s 1 as ‘the presence in or under any land, site,
buildings or structures of a substance or micro-organism above the concentration which
is normally present in or under that land which substance or micro-organism directly
or indirectly affects or may affect the quality of soil or the environment adversely’. The
Act envisages the identification of so-called ‘investigation areas’, which can be identified
by the Minister or MEC. Land so identified is either land on which high-risk activities
take place, or have taken place, and that may result in land contamination; or specified
land that the Minister or MEC reasonably believes to be contaminated.331 A ‘high-risk
activity’ is an undertaking, including involving processes or substances which present
a likelihood of harm to health or the environment.332 The Act places a responsibility on
either the owner of land that is significantly contaminated, or a person who undertakes an
322
Section 27(1).
323
Section 27(2).
324
Section 28.
325
Section 29.
326
Section 32.
327
Section 34.
328
Section 33.
329
See Michael Kidd ‘Some thoughts on statutory directives addressing environmental damage in South
Africa’ (2003) SAJELP 201.
330
Section 35.
331
Section 36(1).
332
Section 1.

activity which caused the land to be significantly contaminated, to notify the Minister of
that contamination when that person becomes aware, or ought to have become aware, of
that contamination.333 What amounts to ‘significant’ contamination is not made clear by
the Act. The Minister or MEC may also issue a written notice to a particular person iden-
tifying specific land as an investigation area if the Minister or MEC reasonably believes
that the land is or may be contaminated.334
The consequences of identification and notification of investigation areas is the subject
of s 37. The Minister or MEC may cause a site assessment to be conducted in respect of
an investigation area or may direct in a notice an owner of an investigation area or the
person who undertook or undertakes the high-risk activity or activity which caused, or
may have caused, the contamination of the investigation area, to cause a site assessment
to be conducted by an independent person, at own cost, and submitted to the Minister or
MEC within a period specified in the notice.335 The Act sets out the contents of such site
assessment, the overall objective of which is to ascertain whether the site in question is
contaminated, and an assessment of the risk such contamination presents to health or the
environment.336 The Act expands on specific aspects of this risk analysis, including issues
relating to the substances involved and the exposure pathways of the contaminants.
Section 38(1) requires the Minister or MEC to consider the site assessment, and to
decide whether:
‘(a) the investigation area is contaminated, presents a risk to health or the environ-
ment and must be remediated urgently;
(b) the investigation area is contaminated, presents a risk to health or the environ-
ment and must be remediated within a specified time period;
(c) the investigation area is contaminated and does not present an immediate risk,
but that measures are required to address the monitoring and management of that
risk; or
(d) the investigation area is not contaminated.’
If there is contamination and remediation is required, then the site is declared to be a
remediation site, and the Minister or MEC may make such remediation order as is neces-
sary to ‘neutralise that risk’.337 If remediation is not required, but there is risk that requires
monitoring or management, then the Minister or MEC may make an order regarding the
measures to be taken.338 Such orders must be complied with at the cost of the person to
whom the order is issued.339 Section 39 sets out the requirements of a remediation order,
which must describe:
‘(a) the person who is responsible for undertaking the remediation;
(b) the land to which the order applies;
(c) the nature of the contamination;
333
Section 36(5).
334
Section 36(6).
335
Section 37(1).
336
Section 37(2).
337
Section 38(2).
338
Section 38(3).
339
Section 38(4).

(d) the measures that must be taken to remediate the land or the standards that must
be complied with when remediating the land;
(e) the period within which the order must be complied with;
(f) whether any limitations in respect of the use of the land are imposed; and
(g) any other prescribed [by regulation] matter.’
The remaining two sections in this Part of the Act are s 40, which prohibits the transfer
of contaminated land without notification of the transferee; and s 41, which provides for a
contaminated land register and its requirements. The Act does not deal with the manner
of remediation should the recipient of a remediation order fail to comply, but it does make
non-compliance an offence, which is dealt with below.
This Part of the Act is woefully inadequate because, amongst other things, it fails
to identify with sufficient clarity the persons responsible for remediation of the sites in
question, and does not provide for any remedial measures (other than criminal sanctions)
in the event that the person in question fails to take such measures. When compared with
the contaminated land regimes in countries such as the United Kingdom and USA, this
aspect in our Act leaves much to be desired.340
Finally in Chapter 4, provision is made for recognition programmes to highlight sig-
nificant achievements in waste management.341
Chapter 5 deals with the licensing of waste management activities. The MEC is the
‘default’ licensing authority for waste management activities requiring authorisation,
except in stipulated circumstances (where the activity involves hazardous waste or trav-
erses provincial boundaries), where the Minister is the authority.342 A welcome provision
is s 44, which provides, effectively, for integration of permitting processes in respect of
waste management activities together with other permitting requirements, in particular
Chapter 5 of NEMA, which deals with environmental authorisations (the EIA process).
Specific provision is made for an integrated licence, and its content is set out.343 Technical
issues relating to the licensing process—the application requirements, appointment of
persons to manage applications and the procedure— are addressed by ss 45−47 respec-
tively. Section 48 provides for the factors to be taken into account in consideration of a
licence application, including the need for, and desirability of, the waste management
activity and alternatives considered, including similar waste management activities, if
any, that have already been licensed, and the best practicable environmental options
available and alternatives that could be taken to protect the environment and prevent
pollution.
The remainder of the chapter addresses various other aspects relevant to the issue of
licences: the decision-making powers of the authorities; the issue of licences; contents of
waste management licences; transfer, review, variation, renewal, revocation and suspen-
sion and surrender of waste management licences.344 A holder of a waste management
licence may be required to designate a waste management control officer for the activity
340
See Michael Kidd ‘Should bad law be remediated? The contaminated land provisions in the National
Environmental Management: Waste Act’ (2009) 16 SAJELP 1.
341
Section 42.
342
Section 43.
343
Section 44(4).
344
Sections 49–57.

in question, who must, inter alia, ensure compliance with the Act.345 Finally, s 59 deals
with whether an applicant for a licence is a ‘fit and proper person’, setting out factors for
evaluation of this, such as whether the person in question has contravened any relevant
legislation or had licences or other authorisations suspended or revoked.
Chapter 6 deals with waste information, requiring the Minister to establish a national
waste information system and the MEC to establish a provincial waste information
system, the objectives of which include the provision of information for the purpose of
developing integrated waste management plans and for other planning purposes.346
The remainder of the Act deals with the administrative-type provisions, including
compliance and enforcement. An environmental management inspector (EMI) appointed
in terms of NEMA may require any person to submit a waste impact report in a speci-
fied form and within a specified period to the EMI if the latter on reasonable grounds
suspects that such person has on one or more occasions contravened or failed to comply
with the Act or any conditions of a waste management licence or exemption and that the
contravention or failure has had or is likely to have a detrimental effect on health or the
environment, including social conditions, economic conditions, ecological conditions or
cultural heritage, or has contributed to the degradation of the environment.347 There is a
comprehensive list of offences, the more serious of which (such as failing to comply with
the general duties in respect of waste management in s 16, and failure to comply with
a remediation order for contaminated land in s 38(2)) attract a penalty of a maximum
fine of R10 million or imprisonment for not more than 10 years or both, in addition to
any other penalty that may be imposed in terms of NEMA.348 Other offences have a
maximum fine of R5 million or imprisonment for not more than 5 years or both,349 except
for offences relating to the provision of information, which have a maximum penalty of
a fine or six months’ imprisonment or both.350 Provision is also made for a penalty for a
continuing offence.351
The Act contains regulatory powers in respect of a wide range of waste management
issues,352 and there is explicit provision for public participation and consultation in respect
of most decisions made in terms of the Act.353
The Act repeals ss 19, 19A, 20, 24, 24A, 24B and 24C of the Environment Conserva-
tion Act, but permits in terms of that Act remain valid, essentially until a waste manage-
ment licence is issued in terms of the new Act.354 The Act is a specific environmental
management Act, meaning that the compliance and enforcement provisions in NEMA
are applicable to the Waste Act. The Act takes effect on a date to be determined by the
Minister, with provisions made for different dates to be proclaimed in respect of different
345
Section 58.
346
Section 61.
347
Section 66(1).
348
Section 68(1).
349
Section 68(2).
350
Section 68(3).
351
Section 68(4).
352
Sections 69−71.
353
Sections 72 and 73.
354
Section 81.

provisions in the Act.355 The Minister proclaimed the commencement date for the Act to
be 1 July 2009, except s 28(7)(a) (which deals with the preparation of an industry waste
management plan by persons on a voluntary basis), Part 8 (ss 35−41) (the contaminated
land provisions) and s 46 (the appointment of persons to manage waste management
licence applications).356
Overall, a comprehensive waste management Act is long overdue in South Africa and
it seems that the Act is comprehensive, with the important exception of the provisions
dealing with contaminated land. As is the case with most environmental legislation
enacted in the past decade, however, there must be concerns that the enforcement and
implementation of the Act may be deficient in the light of capacity constraints in the
relevant organs of state concerned. In particular, municipalities have important respon-
sibilities under this Act and their service delivery is already, in many cases, lacking. A
less sophisticated Act that addressed the basics may well have been a more appropriate
enactment in the circumstances, because it is possible that much of this Act may be a dead
letter, at least in the near future.
7.3 Health Act 63 of 1977

This Act has certain provisions which relate expressly to ‘waste’, and others which relate
to ‘nuisance’, of which solid waste would be an example. ‘Nuisance’ is defined as includ-
ing any ash heap or dung heap so foul or in such a state or so situated or constructed as
to be offensive or to be injurious or dangerous to health and any accumulation of refuse,
offal, manure or other matter which is offensive or is injurious or dangerous to health.357
Other relevant provisions of the Act are in respect of the duties and powers of local
authorities and a number of areas for which the Minister is given the power to make
regulations. The Act provides that:
‘Every local authority shall take all lawful, necessary and reasonably practicable meas-
ures—
(a) to maintain its district at all times in a hygienic and clean condition;
(b) to prevent the occurrence within its district of—
(i) any nuisance;
(ii) any unhygienic condition;
(iii) any offensive condition; or
(iv) any other condition which will or could be harmful or dangerous to the
health of any person within its district or the district of any other local
authority,
or, where a nuisance or condition referred to in subparagraphs (i) to (iv), inclusive, has
so occurred, to abate, or cause to be abated, such nuisance, or remedy, or cause to be
remedied, such condition, as the case may be.’358
355
Section 84.
356
Proc 34 in GG 32189 of 30 April 2009.
357
Section 1.
358
Section 20(1).

The regulatory provisions empower the Minister to make regulations relating to disposal
of waste and related issues.359
7.3 Provincial legislation

Each of the four (pre-April 1994) provinces has legislation which deals with issues relat-
ing to solid waste management and the prohibition of littering, but for the most part waste
management is not the main focus of the legislation. There are only two pieces of pro-
vincial legislation which focus specifically on solid waste matters. They are the Orange
Free State Dumping of Rubbish Ordinance360 and the Natal Prevention of Environmental
Pollution Ordinance,361 both of which focus on littering.
7.4 Local legislation

Many local authorities have by-laws which deal with issues such as waste collection and
transport to the relevant local authority’s disposal site.
7.5 Evaluation
The three basic objectives of waste management are set out at the beginning of the chap-
ter.362 South Africa’s waste legislation did not expressly address either waste minimisa-
tion or re-use and recycling363 until the enactment of the Waste Act. These objectives
can be fleshed out by the law in a number of ways, including compulsory deposit-refund
systems, mandatory purchasing of recycled products (such as paper) by government
agencies, government subsidy of the recycling industry, prohibition on disposal of certain
goods (such as car batteries and so-called ‘white goods’: appliances such as refrigerators,
washing machines and so on), and requiring people to pay proportionally for the amount
of waste of which they dispose.
Despite the fact that there are laws aimed at recycling in South Africa are very new,
recycling is in a healthy state. For example, nearly 58 percent of recoverable paper was
recovered in 2009, and 69 percent of steel cans are currently recycled.364 These figures,
which compare favourably with first world countries, result purely from economic
forces. Certainly, legislation ought to be used, as it is elsewhere, to set official recycling
objectives.
Not all waste can be re-used or recycled and therefore the residue must be safely dis-
posed of. This entails not only the ultimate disposal of the waste but also the efficient
collection, transport and, if necessary, storage of the waste. Disposal in this country is
359
Sections 33(1)(n); 34(j); 34(l); 35(1)(g); 35(1)(i); 37(f); 39(1) and (2).
360
Ord 8 of 1976.
361
Ord 21 of 1981.
362
See above, 144.
363
Re-use involves no change to the material concerned (for example, re-used beer bottles) whereas with
recycling the material is ‘broken down’ and made into a ‘new’ product.
364
Paper Recycling Association of South Africa at http://www.prasa.co.za/sites/default/files/SA%20Recov-
ery%20Stats%202009%20Final%20-%20as%20submitted%20for%20Z%20folder.pdf and Collect-a-Can
(Pty) Ltd at http://www.collectacan.co.za/index.php?option=com_content&view=article&id=10&Ite
mid=22. Both sites accessed on 9 May 2011.

primarily done by means of dumping,365 landfill366 and incineration. About fifteen years
ago, statistics indicated that there were some 900 waste dumps for municipal and domes-
tic garbage, of which only half have permits from the government.367 It is unlikely that
this has changed significantly. The expense of meeting the necessary prerequisites for
a satisfactory landfill site is almost certainly one of the reasons why there are so many
unlicensed and problematic sites.
Litter is waste which has been misplaced. This has to be collected and disposed of.
This process is costly: the cost per year of removing litter was given in 1991 as R80 mil-
lion per year,368 this cost has been found to be up to three times the cost of dealing with
the same waste in the formal waste stream.369 Moreover, litter can be a health problem and
is potentially damaging to animals, both on land and in the sea. South African legislation
at present, however, addresses litter only through the method of prohibition, and enforce-
ment of these prohibitions seems patchy at best.
The enactment of the Waste Act certainly sets the scene for a more integrated approach
to waste management in South Africa and it is hoped that the Act will be implemented as
intended and without too much delay.
8. Hazardous waste
Hazardous waste can be defined as:
any waste that directly or indirectly represents a threat to human health or to the environment by
introducing one or more of the following risks: explosion or fire; infection, pathogens, parasites
or their vectors; chemical instability, reactions or corrosion; acute or chronic toxicity; cancer,
mutations, tumours, or birth defects; ecotoxicity, or damage to ecosystems or natural resources;
accumulation in biological food chains, persistence in the environment, or multiple effects, so
that it requires special attention and cannot be released into the environment, or be added to
sewage, or be stored in a situation which is either open to the air or from which leachate water
could be produced.370
It is defined in the National Environmental Management: Waste Act371 as ‘any waste

that contains organic or inorganic elements or compounds that may, owing to the inher-
ent physical, chemical or toxicological characteristics of that waste, have a detrimental
impact on health and the environment’.372 Hazardous waste is covered by the Waste Act,
365
Dumping is the undesirable practice of simply leaving the waste in an unmanaged heap on a site chosen
usually because it is far enough away from residential areas, but which is often unsuitable owing to its
proximity to water or for other reasons.
366
Defined as ‘a land disposal site at which is employed an engineering method of disposing solid wastes in a
manner through which environmental hazards are minimised by spreading the solid wastes to the smallest
practical volume and applying a compacting covering material at the end of each operating day’ (E Senior
Lay Wasted Waste Inaugural Lecture delivered in the University of Natal, Pietermaritzburg, 10 April 1991
at 5).
367
Eddie Koch, Dave Cooper, Henk Coetzee Water, Waste and Wildlife (1990) at 49–50. The authors use the
term ‘dumps’ in such a way that it probably includes landfill sites (since a ‘dump’, strictly speaking, would
never obtain a permit).
368
CPE 1/91 (n 15) at 43.
369
R Lombard, L Botha & MA Rabie ‘Solid waste’ in Fuggle & Rabie (n 92) at 509.
370
G Noble (ed) Hazardous Waste in South Africa (1992) vol 4 at 4–5.
371
Act 59 of 2008.
372
Section 1.

as discussed in the previous section. This section deals with other legislation specifically
addressing hazardous waste.
The Act which has most relevance, although it, too, does not deal with the issue
comprehensively, is the Hazardous Substances Act.373 This Act caters for hazardous sub-
stances generally, not only hazardous waste. The Act operates by means of classifying
substances into various groups. Group I and II substances comprise any substance which,
in the course of customary or reasonable handling or use, including ingestion, might, by
reason of its toxic, corrosive, irritant, strongly sensitising or flammable nature or because
it generates pressure through decomposition, heat or other means, cause injury, ill-health
or death to human beings.374 Group III substances are electronic products,375 and Group
IV consists of radioactive material.376
The main control provision in the Act is that which empowers the Minister of Health to
make regulations relating to the manufacture, modification, importation, storage, trans-
portation or dumping or other disposal of any grouped hazardous substances,377 amongst
other issues.378 The only regulations of relevance to hazardous waste are those which deal
with the disposal of empty containers of Group I hazardous substances.379 There were
regulations relating to the transportation of grouped hazardous substances by means of
a road tanker.380 These were repealed, however, since the transportation of hazardous
substances is regulated by regulations under the Road Traffic Act.381
Although the Waste Act now regulates hazardous waste, there was for many years
a lack of effective legislation in this regard. This was particularly problematic as the
issue of hazardous waste has for some time been seen as a ‘burning issue’ by the general
public, fuelled by the revelations of the infamous Thor Chemicals saga.382 One aspect
around which most of the controversy relating to this topic revolves is the matter of the
importation of hazardous waste.
On 5 May 1994 South Africa acceded to the 1989 Convention on the Control of Trans-
boundary Movements of Hazardous Waste and their Disposal, commonly referred to as
the Basel Convention.383 In short, this convention regulates but does not prohibit (except in
specified circumstances) the trade in hazardous waste between countries.384 Shortly after
the accession, the Minister of Environment Affairs declared that ‘no hazardous waste
373
Act 15 of 1973.
374
Section 2(1).
375
Section 2(1)(b).
376
Section 1.
377
Section 29(1).
378
Section 29.
379
GNs 452 and 453 in GG 5467 of 25 March 1977 (cf also GNs R2777 and R2778 in GG 9533 of 21 December
1984 and GN R72 in GG 9556 of 11 January 1985). See Lombard et al (n 368) at 516–17 for details.
380
GN R73 in GG 9556 of 11 January 1985.
381
Act 93 of 1996. The relevant regulations are found in GN R1249 in GG 22872 of 30 November 2001,
incorporating certain standard specifications into the National Road Traffic Regulations published in GN
R 225 of 17 March 2000.
382
A Commission of Inquiry under the chairmanship of Professor Dennis Davis was established to investi-
gate issues relating to Thor Chemicals: GN R460 and Proc R19 in GG 16321 of 24 March 1995.
383
See above, 64.
384
For further detail, see Jan Glazewski ‘Regulating transboundary movement of hazardous waste: The 1989
Basel Convention’ (1993) 26 CILSA 234.

from any other country would be allowed to be dumped in South Africa’.385 Although
this may be government policy,386 there is no legislation at present which reinforces the
ministerial pronouncement.
Another international convention dealing with transboundary movement of hazardous
waste is the African Convention on the Bar of the Import of all Forms of Hazardous
Waste in Africa and of the Transboundary Movements of all such Waste Generated in
Africa, also known as the Bamako Convention after the town in Mali where it was first
signed. The convention is open only to members of the African Union. This convention
prohibits the import of waste from non-African countries onto the continent but allows
trade between African countries and export of such waste from Africa.
The matter of the importation of hazardous waste into South Africa is a highly emotive
one which needs urgent attention. One way of addressing the problem which is probably
not an option for South Africa is the Namibian solution, which provides in its Constitu-
tion that ‘the Government shall provide measures against the dumping or recycling of
foreign nuclear and toxic waste on Namibian territory’.387 Whichever avenue is chosen
in South Africa, considerations which will have to be given careful attention are the
definition of hazardous waste (in order to allow the importation of hazardous substances
which can legitimately be processed or recycled) and the safety of people, particularly
those who have to work with the substances, and the environment.
8.1 Medical waste

Medical waste is ultimately regulated by general waste legislation (the Waste Act), but
there is arguably merit in addressing it in specific legislation, as it presents particular
problems. In late 2009, several tons of medical waste was found illegally disposed of in
various sites in the Welkom area,388 but, at the time of writing, prosecution has yet to be
instituted. There have been other incidents elsewhere in the country where medical waste
has been disposed of inappropriately.
Although there is no dedicated national medical waste legislation, two provinces have
enacted legislation: the Western Cape Health Care Waste Management Act,389 and Gaut-
eng Health Care Waste Management Regulations, in terms of the Environment Conser-
vation Act.390 There are also several codes of practice relating to medical waste.391
385
The Citizen 21 May 1994.
386
Or at least apparent government policy: in 1995, it appeared that a private consultant had arranged for
the import of cupric arsenide from Finland using official letterheads of the Department of Environmental
Affairs. See 22 September 1995 Weekly Mail & Guardian.
387
Article 95(1).
388
See, for example, Werner Swart et al ‘Medical waste horror’ (29 Nov 2009) Times Live at http://www.
timeslive.co.za/sundaytimes/article212394.ece (accessed 28 February 2011).
389
Act 7 of 2007.
390
GenN 3035 in PG 372 of 15 September 2004
391
SANS452:2008 Non-reusable and reusable sharps containers; SANS 10248–1: 2008 Management of
healthcare waste from a healthcare facility; and SANS 10248–2: 2009 Management of healthcare waste
in a rural setting, amongst others. See Anon ‘Selecting the right HCRW contractor’ (Feb 2011) 13
ReSource 46.

9. Radiation
The average person cannot avoid being exposed to ionising radiation392 from natural
sources, but in the last century various technological innovations, such as x-ray machines
and nuclear reactors, have exposed people to radiation from these sources as well.393
Nuclear incidents, such as those at Chernobyl, Russia, in 1986 and in Fukushima, Japan,
in 2011, have brought into the spotlight the terrible effects, both immediate and long-
term, that radiation can have on human health.
Less well-known than ionising radiation is non-ionising radiation,394 which derives
from objects such as electro-optical devices (lasers, for example), radio-frequency and
microwave devices and ultrasound devices. Negative effects on human health from this
radiation are mainly heat-related.
Control over radiation is provided by three Acts: the Nuclear Energy Act395 and the
National Nuclear Regulator Act,396 which together replace the Nuclear Energy Act;397 and
the National Radioactive Waste Disposal Institute Act.398 The objectives of the Nuclear
Energy Act are to provide for the establishment of the South African Nuclear Energy
Corporation Limited, a public company wholly owned by the State (the ‘corporation’), to
define the corporation’s functions and powers and its financial and operational account-
ability, and provide for its governance and management by a board of directors and a chief
executive officer; to provide for responsibilities for the implementation and application
of the Safeguards Agreement and any additional protocols entered into by the Republic
and the International Atomic Energy Agency in support of the Nuclear Non-Proliferation
Treaty acceded to by the Republic; to regulate the acquisition and possession of nuclear
fuel, certain nuclear and related material and certain related equipment, as well as the
importation and exportation of, and certain other acts and activities relating to, that
fuel, material and equipment in order to comply with the international obligations of the
Republic; to prescribe measures regarding the discarding of radioactive waste and the
storage of irradiated nuclear fuel; and to provide for incidental matters.399
Chapter II of the Act provides for the Corporation and Chapter III non-proliferation.
The most interesting aspects of the Act from the environmental perspective are those
addressed in Chapter 4: the Minister’s400 responsibilities regarding source material,
special nuclear material, restricted material, radioactive waste and irradiated fuel. The
authority over the management and discarding of radioactive waste and the storage of
irradiated nuclear fuel vests in the Minister, who, in consultation with the Minister of
Environmental Affairs and Tourism and the Minister of Water Affairs and Forestry,
392
Ionising radiation consists of electromagnetic waves (x- and gamma-rays) emitted spontaneously by radio-
active isotopes and subatomic particles: see PR le Roux et al ‘Radiation’ in Fuggle & Rabie (n 91) at
545–50 for technical detail.
393
Eighty-seven per cent of the average person’s exposure to radiation is from natural sources.
394
All forms of electromagnetic and mechanical radiation whose primary mode of interaction with matter is
other than by ionisation: see Le Roux et al (n 392) at 550–5.
395
Act 46 of 1999.
396
Act 47 of 1999.
397
Act 131 of 1993.
398
Act 53 of 2008.
399
Long title.
400
The Minister of Minerals and Energy.

may make regulations prescribing the manner of management, storage and discarding
of radioactive waste and irradiated nuclear fuel.401 Moreover, except where authorised
by a ministerial authority issued under the Hazardous Substances Act, no person may,
without the written permission of the Minister, discard radioactive waste in any manner
or cause it to be so discarded.402 Also, except with the written permission of the Minister,
no person may store any irradiated nuclear fuel or cause it to be stored.403 Such permis-
sion may be granted subject to any conditions that the Minister, in concurrence with
the Minister of Environmental Affairs and Tourism and the Minister of Water Affairs
and Forestry, deem fit to impose. The conditions so imposed will be additional to any
conditions contained in a nuclear authorisation as defined in s 1 of the National Nuclear
Regulator Act.404
In terms of regulation,405 restricted material includes beryllium, hafnium, and zirco-
nium. Source material consists of substances containing uranium (in various forms) and
thorium. Special nuclear material includes plutonium and uranium in other forms than
those in the previous list. The category ‘nuclear related material and equipment’ includes
material (which consists of deuterium, heavy water and nuclear grade graphite), whereas
the equipment consists of a long list including the obvious such as reactors and associated
equipment to various plants that convert or manufacture the material mentioned above.
These categories are relevant in respect of s 34 of the Act, which requires authorisation
for certain activities (such as possession) in respect of this material.
The National Nuclear Regulator Act has as its objectives to provide for the establish-
ment of a National Nuclear Regulator in order to regulate nuclear activities, for its objects
and functions, for the manner in which it is to be managed and for its staff matters; to
provide for safety standards and regulatory practices for protection of persons, prop-
erty and the environment against nuclear damage; and to provide for matters connected
therewith.406
Chapter 2 of the Act establishes the Regulator and sets out its powers, functions, com-
position and so on. Chapter 3 provides for nuclear authorisations. Any person wishing to
site, construct, operate, decontaminate or decommission a nuclear installation may apply
in the prescribed format to the chief executive officer for a nuclear installation licence and
must furnish such information as the board requires.407 In addition, any person wishing
to anchor or sojourn in the territorial waters of the Republic, or enter any port in the
Republic, with a vessel which is propelled by nuclear power or which has on board any
radioactive material capable of causing nuclear damage, may apply to the chief execu-
tive officer for a nuclear vessel licence and must furnish such information as the board
requires.408
401
Section 45.
402
Section 46(1).
403
Section 46(2).
404
Section 46(3).
405
406
Long title.
407
Section 21(1).
408
Section 21(2).

Holders of nuclear licences are required to furnish security, as determined by the

Minister in terms of s 29. As was the case with the previous Act,409 the Act provides for
strict liability of the holder of a nuclear installation licence for nuclear damage.410 Also
similar to the old Act is a section allowing for a very generous prescription period for the
bringing of claims for nuclear damage — essentially 30 years.411
The Minister is required to make regulations regarding safety standards and regulatory
practices.412 In the event of a nuclear accident413 or incident,414 the Act prescribes various
duties on the licence holder, particularly in respect of notification.415
One of the most important aspects of the National Radioactive Waste Disposal Insti-
tute Act416 are the functions of the Institute,417 which must:
‘(a) perform any function that may be assigned to it by the Minister in terms of s 55(2)
of the Nuclear Energy Act 46 of 1999, in relation to radioactive waste disposal;
(b) design and implement disposal solutions for all classes of radioactive waste;
(c) develop radioactive waste acceptance and disposal criteria in compliance with
applicable regulatory health safety environmental requirements and any other
technical and operational requirements;
(d) assess and inspect the acceptability of radioactive waste for disposal and issue
radioactive waste disposal certificates;
(e) manage, operate and monitor operational radioactive waste disposal facilities,
including related storage and predisposal management of radioactive waste at
disposal sites;
(f) manage and monitor closed radioactive waste disposal facilities;
(g) investigate the need for any new radioactive waste disposal facilities and site,
design and construct such new facilities as may be required;
(h) conduct research and develop plans for the long-term management of radioactive
waste storage and disposal;
(i) maintain a national radioactive waste database and publish a report on the inven-
tory and location of all radioactive waste in the Republic at a frequency deter-
mined by the board;
(j) manage the disposal of any ownerless radioactive waste on behalf of the State,
including the development of radioactive waste management plans for such waste;
409
See the discussion in Michael Kidd Environmental Law: A South African Guide (1997) at 144.
410
Section 30.
411
Section 34.
412
Section 36.
413
‘Nuclear accident’ means any occurrence or succession of occurrences having the same origin which—
(a) results in the release of radioactive material, or a radiation dose, which exceeds the safety standards
contemplated in section 36; and
(b) is capable of causing nuclear damage (s 1).
414
‘Nuclear incident’ means—
(a) any unintended event at a nuclear installation which causes off-site public exposure of the order of
at least one tenth of the prescribed limits; or
(b) the spread of radioactive contamination on a site or exposure of a worker above the prescribed limits
or a significant failure in safety provisions, other than a nuclear accident (s 1).
415
Section 37.
416
Act 53 of 2008.
417
Section 5.

(k) assist generators of small quantities of radioactive waste in all technical aspects
related to the disposal of such waste;
(l) implement any assignments or directives from the Minister regarding radioactive
waste disposal;
(m) provide information on all aspects of radioactive waste disposal to the public in
general, living in the vicinity of radioactive waste disposal facilities;
(n) co-operate with any person or institution on matters relating to the performance
of any duty contemplated in this section falling within these functions; and
(o) perform any other function necessary to achieve the objects of this Act.’
The Act also makes provision for the application for a radioactive waste disposal certifi-
cate by a person wishing to dispose of such waste,418 which may be made subject to con-
ditions.419 The Act provides for the responsibilities of the generator of radioactive waste.
He/she is responsible for technical, financial and administrative management of such
wastes within the national regulatory framework at their premises and when such wastes
are transported to an authorised disposal facility.420 In addition, generators of radioac-
tive waste must develop and implement site specific waste management plans based on
national policy; provide all relevant information on radioactive waste as required by the
chief executive officer; demonstrate compliance with any conditions of a radioactive
waste disposal certificate; and provide site access to agency staff for inspection against
any conditions of the radioactive waste disposal certificate.421 Such generators shall
remain responsible for all liabilities in connection with such radioactive waste under their
control until such time as the radioactive waste has been received and accepted in writing
by the Agency, following an inspection, at which time liability shall pass to the Agency.
Non-ionising radiation is dealt with by the declaration of certain electronic products to
be Group III hazardous substances in terms of the Hazardous Substances Act. A number
of products, amongst them x-ray devices, microwave and ultrasound devices, were so
declared.422 There is an extensive set of regulations, relating primarily to the licensing
of such electronic products, both those which emit non-ionising and those which emit
ionising radiation, and the premises on which they are used.423
The Minister of Minerals and Energy released the national Nuclear Energy Policy in
2008, which (inter alia) explicitly intends nuclear energy to form part of South Africa’s
diversification of primary energy sources and to ensure security of energy supply.424
10. Noise pollution

Noise is something which can be very annoying for its victims. Most often its effect is to
disturb people’s sleep or recreation; it affects intelligibility of speech and it has similar
psychological effects. Exposure to noise of a high level for a long duration will lead to
418
Section 23.
419
Section 24.
420
Section 25(1).
421
Section 25(2).
422
GN R1302 in GG 13299 of 14 June 1991. For full list, see Le Roux et al (n 392) at 565.
423
GN R1332 in GG 3991 of 3 August 1973. For detail of the regulations, see Le Roux et al (n 391) at 566.
424

hearing loss. Less well known effects are that it may cause irregular and increased heart
beats, aggravating the risk of cardiovascular disease, for instance.425
In order to understand fully how regulation of noise operates, it is necessary to know
about the measurement of noise as it affects humans. A full discussion of this is not pos-
sible here, but what it is necessary to bear in mind are the following details. The common
measure of noise is the decibel (dB), which is a logarithmic measure. Instruments which
measure noise (sound level meters) are equipped with circuitry to approximate the ear’s
sensitivity.426 This is done by means of a weighting network, the network used in South
Africa’s legislation being the A-scale. When sound levels are measured on the A-scale,
they are designated dBA. One of the convenient features of the A-scale is that a doubling
of loudness is roughly equal to an increase in sound level of 10 dBA.427
Noise is a type of pollution which traditionally has been addressed by means of the
law of nuisance, victims using the interdict to attempt to put a stop to the source of
the noise.428 Otherwise, local authorities have historically regulated noise by prohibiting
any nuisance arising within their areas, noise seldom being specifically identified as a
nuisance.429 Since 1978, however, several local authorities have enacted bylaws aimed
specifically at combating noise. The by-laws in question all define a ‘disturbing noise’
as a noise level which exceeds the ambient sound level by 7 dBA or more.430 This is
measured on a meter, therefore it is an objective criterion. Making a disturbing noise is
prohibited.
In 1990, a set of noise control regulations was issued under the Environment Conserva-
tion Act,431 which were to be applicable only in the areas of jurisdiction of local authorities
which requested them.432 In 1992, the Act was amended, removing the requirement that
required local authorities to consent before regulations under the Act became applicable
in their areas of jurisdiction. Up until this time, 33 local authorities had decided to imple-
ment the regulations within their areas.
In January 1994, the Department issued a draft set of noise regulations433 which were
intended to be applicable throughout the country, unless a local authority requests to
be exempted from the operation of the regulations.434 It is not clear why, more than ten
years on, the draft regulations have never been made final. The draft regulations are in
425
See A Semmelink & MA Rabie ‘Noise’ in RF Fuggle & MA Rabie Environmental Concerns in South
Africa (1983) 366 at 367; and Organisation for Economic Co-operation and Development Fighting Noise
(1986) at 11–12 and 39–45.
426
Semmelink & Rabie (n 425) at 368.
427
R Taylor Noise (1979) at 60. Therefore, a sound of 16 dBA would be perceived as twice as loud by humans
as a sound of 6 dBA, as would be the case with 90 dBA as opposed to 80 dBA.
428
See, for example, De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D); Gien v Gien 1979 (2) SA
1113 (T); Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 (3) SA 159 (T). See Milton
(n 19) at para 201.
429
See Semmelink & Rabie (n 425) at 581.
430
Ibid.
431
Section 25.
432
GN 896 in GG 12435 of 27 April 1990. In terms of the Act as it then was, any regulations which affected
local authorities could only be applicable in those areas where the local authority concerned agreed to their
application (s 28(i)(ii)).
433
GN R55 in GG 15423 of 14 January 1994.
434
In terms of s 28A of the Act.

substance exactly the same as the earlier set, and the following analysis focuses on the
more important aspects of the regulations.
The regulations deal, inter alia, with the following issues: the powers of a local author-
ity to carry out a variety of actions aimed at controlling noise;435 a general prohibition on
development without taking specified measures;436 a general prohibition on development
in a controlled area;437 a requirement that any venue which has a sound amplification
device emitting sound in excess of 95 dBA displays a warning notice;438 a general prohi-
bition on using power tools for construction and similar works during specified hours;439
and a general prohibition on the driving of a car on a public road if it makes a noise
exceeding specified sound levels.440
Probably the two most important concepts under the regulations are ‘disturbing noise’
and ‘noise nuisance’. A disturbing noise, which is prohibited,441 is one which exceeds
the zone sound level442 or ambient sound level by 7 dBA or more.443 This, as pointed out
above, is an objective measurement. A noise nuisance, on the other hand, is subjectively
determined, as it is defined as any sound which disturbs or impairs or may disturb or
impair the convenience or peace of any person.444 There is a prohibition of a number of
activities which may cause a noise nuisance.445 Examples are noise caused by animals,
sirens or alarms, and the operation of machinery. Animals and vehicles causing noise
which is prohibited in terms of the regulations can be attached and impounded respec-
tively.446 The penalties for contravention are a fine not exceeding R20 000 or two years’
imprisonment or both, and a R250 fine or twenty days’ imprisonment for each day that
the contravention continues.447
Although the regulations are comprehensive in their scope, certain criticisms may be
aired. It may be questioned why there is the need for the subjective criterion of the noise
nuisance in addition to the objective disturbing noise criterion. This is presumably neces-
sary since there may well be noise problems which do not qualify as disturbing noises
which need to be controlled, for example, noise being made in the middle of the night in
a residential neighbourhood. The definition of noise nuisance in the regulations, however,
is deficient in that, as it stands, many activities which would be regarded by most people
as acceptable would satisfy the definition. For example, the operation of a lawnmower in
the middle of a weekday may well disturb the convenience or peace of a person. A better
435
Regulation 2. For example, the issue of abatement notices.
436
Regulation 3(a), (c) and (d).
437
Regulation 3(b) and (e). A controlled area is an area where, in short, road transport or aircraft noise
exceeds a level of 65 dBA, or industry noise exceeds a level of 61 dBA (reg 1 — for comparative purposes,
the sound level in a supermarket would be between 60 and 70 dBA).
438
Regulation 3(h). This would be pertinent to night clubs and similar places.
439
Regulation 3(i).
440
Regulation 3(j).
441
Regulation 4.
442
A level set by the local authority.
443
Regulation 1.
444
Ibid.
445
Regulation 5.
446
Regulation 2(g) and reg 2(h) read with reg 8.
447
Regulation 9.

formulation, which would take care of this flaw, would be to define it as something which
unreasonably disturbs any person, thus conforming to the common-law conception of a
nuisance.448
Nelson Mandela Metropolitan Municipality v Greyvenouw CC449 illustrates the opera-
tion of the noise control regulations (those adopted before 1994 by municipalities, Port
Elizabeth in this case). A noticeable feature of the judgment is that the court fails to
distinguish between disturbing noise and noise nuisance as separate concepts, but the
result obtained in the case was the right one.450
In Laskey v Showzone CC,451despite the recognition by the court of the relevant regula-
tions in terms of the ECA, the decision was made essentially on the basis of common-law
principles.452
Probably the major problem with the noise control legislation, though, is its selective
application. The absence of a national legislative framework is undesirable, particularly
from the point of view of incorporation of noise considerations in development planning.
There is other legislation which addresses noise pollution. The National Road Traffic
Act 93 of 1996 provides that no person shall operate or permit to be operated on a public
road a vehicle causing noise which is either (a) in excess of the prescribed noise level;
or (b) resulting from the use of methods, accessories or appliances the use of which
is prohibited by regulation.453 A motor vehicle causing excessive noise is regarded as
unroadworthy and may thus be suspended from use pending removal of the fault causing
the excessive noise.454 The Aviation Act455 allows for regulations to be made dealing with
nuisance (including noise) from aviation and related activities,456 but no such regulations
have been made. Finally, noise in the workplace, which can potentially be the most harm-
ful to those exposed to it, is covered by regulations made under the Occupational Health
and Safety Act.457
11. Pesticides
It has been estimated that about one million accidents involving pesticides occur world-
wide every year, between 5 000 and 20 000 of these resulting in death.458 In South Africa,
between 1980 and 1994, 2 180 cases of pesticide poisoning were notified, of which 127
448
See above, 145.
449
2004 (2) SA 81 (SE).
450
See Michael Kidd ‘Muzzling the Crazy Zebra: Noise regulation in Nelson Mandela Metropolitan Munici-
pality v Greyvenouw CC 2004 (2) SA 81 (E)’ (2005) 12 SAJELP 172.
451
2007 (2) SA 48 (C).
452
See Warren Feedman ‘Hear no evil: Noise pollution, the common law of nuisance and the noise control
regulations — Laskey v Showzone CC 2007 (2) SA 48 (C)’ (2009) 16 SAJELP 79.
453
Section 75(1)(b). See also reg 344(e) GN 910 GG 12441 of 26 April 1990 as amended by reg 25 GN 1954 in
GG 12701 of 17 August 1990.
454
Section 73(1).
455
Act 74 of 1962.
456
Section 22(1)(s).
457
Act 85 of 1993. GN R2281 in GG 10988 of 16 October 1987 as amended by GN R1754 in GG 12054 of 18
August 1989.
458
Nigel Dudley This Poisoned Earth (1987) 1; World Health Organisation estimate cited in Department of
Health Epidemiological Comments (June 1995) 112.

were fatalities.459 Pesticides have also been shown to cause significant numbers of cancer
cases.460
Pesticides require special control because they are poisons which, by and large, are not
selective in their effects. Many pesticides are dangerous to non-target organisms, includ-
ing humans. Before examining the control mechanisms that apply in South Africa, let us
examine some of the better publicised pesticide incidents in South Africa.
In the 1980s several vegetable farmers in the Tala Valley area (in the Camperdown
district) suffered damage to their crops as a result of the drift of hormonal herbicides
(including the chemical compound 2,4-D) from neighbouring farms where these herbi-
cides were used for weed control. The affected farmers sued the manufacturers of the
herbicides under the law of delict but failed (amongst other reasons) owing to the inabil-
ity of the farmers to show that the manufacturer’s actions in selling the herbicide were
wrongful.461 Although the farmers lost the court action, the use of hormonal herbicides
was subsequently prohibited in the area that had been affected.462
In the 1990s, a media controversy arose from the use of herbicides by the South African
Police Services in the control of dagga in rural areas of KwaZulu-Natal. Opponents of the
strategy are concerned about the potential for harm arising from the fact that herbicides
sprayed from the air may drift beyond the target area and about the harmful effect of the
pesticides concerned on humans and farm animals. In 2006, it was reported that baboons
in Cape Town, together with a conservationist who worked with the baboons, had been
poisoned by Dieldrin.463
The legislation controlling the use of pesticides in South Africa is the Fertilizers, Farm
Feeds, Agricultural Remedies and Stock Remedies Act.464 This Act is aimed first and
foremost at the registration of the various products mentioned in the title of the Act and
to regulate or prohibit the importation, sale, acquisition, disposal or use of the products.
The Act is controlled by the Department of Agriculture.
Pesticides (defined in The Oxford English Dictionary as substances for destroying
pests, especially insects) fall under the definitions of ‘agricultural remedy’ and, to
a lesser extent, ‘stock remedy’. An agricultural remedy is any chemical substance
or biological remedy, or any mixture or combination of any substance or remedy,
intended or offered to be used (a) for the destruction, control, repelling, attraction
or prevention of any undesired microbe, alga, nematode, fungus, insect, plant, verte-
brate, invertebrate, or any product thereof, or (b) as plant growth regulator, defoliant,
dessicant or legume innoculant, and anything else which the Minister has by notice in
459
Department of Health (n 457) at 117. Pesticide poisoning is a notifiable condition which requires noti-
fication to the Department of Health. Yet a study has shown that the majority (78 per cent) of pesticide
poisoning cases admitted to hospital were not notified (L London et al ‘Notification of Pesticide Poisoning
in the Western Cape, 1987–1991’ (1994) 84 South African Medical Journal 269).
460
See LR Ferguson ‘Natural and man-made mutagens and carcinogens in the human diet’ (1999) 443 Muta-
tion Research, Genetic Toxicology and Environmental Mutagenesis 1; National Academy of Sciences
The Future Role of Pesticides in Agriculture (2000); World Health Organisation Our Planet, Our Health:
Report of the WHO Commission on Health and Environment (1992).
461
See Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N).
462
See below, 202.
463
John Yeld ‘Poisoned baboons’ (2006) 60:4 African Wildlife 16. See also Anon ‘Dieldrin: Elixir of death’ in
the same issue at 18.
464
Act 36 of 1947.

the Gazette declared an agricultural remedy for purposes of the Act.465 A stock remedy
is a substance intended or offered to be used in connection with domestic animals,
livestock, poultry, fish or wild animals (including wild birds), for the diagnosis, pre-
vention, treatment or cure of any disease, infection or other unhealthy condition, or for
the maintenance or improvement of health, growth, production or working capacity.466
The Act provides for the appointment of an official in the Department of Agriculture
known as the Registrar of Fertilizers, Farm Feeds, Agricultural Remedies and Stock
Remedies.467 Application must be made to the Registrar for the registration of any remedy
(including pesticides).468 The Registrar must take into account issues like its suitabil-
ity for the stated purpose and its efficiency subject to the ‘public interest’ (which is not
defined).469
The Registrar may cancel registration if, inter alia, it is against the public interest for
the product to remain registered.470
Section 7 prohibits the sale of remedies unless the substance is registered, packaged
and labelled as required by the Act. The Minister may prohibit the sale, acquisition,
disposal or use of remedies, either totally or subject to specified conditions.471 Almost
thirty years ago, the Minister declared a total prohibition on the acquisition, disposal or
sale of remedies containing certain substances including the well-known Lindane; DDT;
Dieldrin and Aldrin.472 Note that ‘use’ was not prohibited and the Department of Health
still uses DDT in rural areas for mosquito control (after some years of discontinuation
of DDT use led to a dramatic increase in malaria cases).473 In addition, the use of certain
so-called ‘hormonal herbicides’ was prohibited in certain areas of KwaZulu-Natal after
the above-mentioned Tala Valley episode.474 The Minister also prohibited the sale, acqui-
sition, disposal or use of the agricultural remedy Monocrotophos, which is particularly
toxic to birds,475 and the sale, acquisition, disposal or use of Chlordane in technical or
other form.476 Chlordane is an insecticide that is on the list of persistent organic pollutants
(POPS) in terms of the POPS Convention, discussed below. The use of Chlorpyrifos
465
Section 1.
466
Ibid.
467
Section 2.
468
Section 3.
469
It has been suggested that ‘public interest’ ought to be defined so that reference to unreasonable risk to
human health or the environment could be taken into account, having regard to the economic, social and
environmental costs of using the pesticide: see JH Giliomee & PD Glavovic ‘Pesticides’ in Fuggle & Rabie
(n 92) at 541.
470
Section 4(1).
471
Section 7bis(2)(c).
472
GN R928 in GG 7566 of 1 May 1981. The use of remedies containing Lindane was prohibited again (it was
not clear why this was necessary since the earlier notice was not replaced) in GN R592 in GG 32254 of 29
May 2009.
473
See R Maharaj, D Mthembu and BL Sharp ‘Impact of DDT re-introduction on malaria transmission in
KwaZulu-Natal’ (2005) 95 South African Medical Journal 871.
474
475
476
GN R834 in GG 27914 of 26 August 2005.

was prohibited in 2010.477 It is highly toxic and its commercial version Dursban was
prohibited for household use in 2001. It has, however, been widely used in agriculture.
In addition to the above, the Act controls the packaging478 and importation479 of sub-
stances under the ambit of this Act and the registration and regulation of pest-control
operators.480
Penalties for offences in terms of the Act are either a R500 fine and/or twelve months’
imprisonment or R1 000 fine and/or two years’ imprisonment, depending on the offence.481
Regulation over the export of pesticides is not provided for by the Act but there is a
measure of control which can be exercised over products with pesticide residues in terms
of the Agricultural Produce Export Act.482 Various aspects of the use and handling of
pesticides can also be regulated in terms of the Hazardous Substances Act.483 In terms of
the Health Act,484 poisoning from any remedy registered in terms of the Fertilizers, Farm
Feeds, Agricultural Remedies and Stock Remedies Act is a notifiable medical condi-
tion.485 Finally, the protection of pest control operators is also provided for by regulations
under the Occupational Health and Safety Act.486 The regulations provide for the duties of
employers and employees, assessment of exposure, monitoring and medical surveillance
and other control measures.
It has been suggested487 that the control Act deals with too many diverse issues (that is,
pesticides as well as farm feeds, fertilizers and so on) to be effective. It has been recom-
mended that there be one Pesticides Control Act with a control body that is not concerned
with the promotion of agriculture (as is the situation at present). The New Zealand model
has been posited as a good alternative, where there is an Act which deals with pesticides
only and a Pesticides Board with representation from various public and private sector
interest groups.488
Shortly before the writing of this book, the Minister published the Pesticide Manage-
ment Policy for South Africa.489 It is worth reproducing the ‘problem statement’ identified
by the policy in full, as this allows for evaluation of the existing Act:
●● The Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act is
almost 60 years old. Changes to the context within which pesticides are managed
have taken place and have led to a need to consider reviewing the current Act to
improve efficiency and effectiveness of pesticides management in South Africa. The
review yielded a number of concerns, including:
477
GN R375 in GG 33171 of 14 May 2010.
478
Section 7(1)(c).
479
Section 16.
480
Sections 3 and 6A.
481
Section 18(1).
482
Act 51 of 1971.
483
Act 15 of 1973.
484
Act 63 of 1977.
485
Section 45 and GN R1802 in GG 6628 of 24 August 1979.
486
Act 85 of 1993. GN R1138 in GG 15262 19 November 1993.
487
See Giliomee & Glavovic (n 469) at 542–3.
488
Ibid.
489
GenN 1120 in GG 33899 of 24 December 2010.

●● The Act does not adequately address Constitutional requirements in relation to Bill
of Rights (ie right of environment which is not harmful to health), Access to Informa-
tion, openness, transparency and participate in decision-making and also just admin-
istration action;
●● The Act does not adequately incorporate international obligations and agreements to
which South Africa is a Party;
●● Under the current Act, anyone contravening a provision of the Act or the regula-
tions is guilty of an offence and will be summarily convicted and liable to a fine not
exceeding R1000, and such penalties have limited deterrent effect;
●● There is no requirement for review of registered pesticides or re-evaluation of old
chemicals;
●● Lack of establishment of pesticide use surveillance and monitoring systems to
gather information on common conditions of use and their impact on health and
environment;
●● The Act does not adequately protect non-target areas (eg residential areas, schools,
hospitals, etc) from exposure to activities spraying activities;
●● The Act does not require prior training and certification to use/apply the most toxic
pesticides (e.g. WHO hazard class 1 and II);
●● Lack of capacity for research on alternative pest control and crop production mea-
sures;
●● Lack of awareness raising, education and training appropriate to the public and the
user;
●● Does not adequately encourage registration that favours lower risk products and
reduced reliance on pesticides overall;
●● The Act does not adequately address the problem of obsolete stockpile pesticides and
their disposal;
●● The Act does not adequately address the issue of pesticide container management;
and
●● Inadequate integration across government departments and complementing other
legislations (sic).
In light of these observed concerns, the objectives of the policy are fourfold:
●● The improvement of the legislative framework to ensure that South Africans are bet-
ter protected from health and environmental risks posed by pesticides;
●● The development and use of alternative products and techniques and reduction of
dependence on chemical plant protection products to be encouraged;
●● The integration of relevant international agreements and initiatives from other gov-
ernment departments;
●● Increased transparency, access to information and improvement in public participa-
tion in the registration of pesticides.
What could be described as overarching principles that will influence the implementation
of the new policy are: the protection of human health and the promotion of a non-toxic
environment; protection of biodiversity; protection of water quality; food safety; and
worker protection. As for international agreements and obligations, the policy recognises
obligations imposed by the Rotterdam (Prior Informed Consent) Convention; the Ozone

Layer MEAs (Vienna Convention and Montreal Protocol) and the Stockholm Convention
on Persistent Organic Pollutants.
The policy also addresses labelling; monitoring and research; pesticide disposal and
container management; alternatives to pesticides; and increased transparency as requir-
ing attention.
The policy envisages the replacing of the existing Act, which is sixty years old, with
new legislation which will have as its overarching objectives the protection of health and
the environment; a registration system that is transparent and participatory; and strong
post-registration pesticides control. The policy also envisages the creation of a Pesticide
Regulation Unit under the auspices of the Department.
At the international level, two conventions address pesticides. The Stockholm Conven-
tion on Persistent Organic Pollutants (known widely as the POPS Convention), which
South Africa ratified on 4 September 2002, entered into force on 17 May 2004. The
convention is a global treaty to protect human health and the environment from persistent
organic pollutants (POPs). POPs are chemicals that remain intact in the environment for
long periods, become widely distributed geographically, accumulate in the fatty tissue of
living organisms and are toxic to humans and wildlife. POPs circulate globally and can
cause damage wherever they travel. In implementing the convention, governments will
take measures to eliminate or reduce the release of POPs into the environment. The POPs
targeted for elimination by the convention (Annex A) are Aldrin, Chlordane, Dieldrin,
Endrin, Heptachlor, Hexachlorobenzene, Mirex, Toxaphene and polychlorinated biphe-
nyls. DDT is targeted for restriction (as opposed to elimination) since the convention
recognises that it is being used for malaria control in many parts of the world.490
The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Haz-
ardous Chemicals and Pesticides in International Trade (the PIC Convention) entered into
force on 24 February 2004. South Africa acceded to the convention on 4 September 2002.
The convention establishes a first line of defence by giving importing countries the tools
and information they need to identify potential hazards and exclude chemicals they can-
not manage safely. If a country agrees to import chemicals, the convention promotes their
safe use through labelling standards, technical assistance, and other forms of support. It
also ensures that exporters comply with the requirements.
12. Safety in the work environment

Occupational health and safety is not an area which is obviously a concern of environ-
mental law, being regarded more conventionally as a labour law issue. However, the links
between the work environment and the environment as a whole are clear and it is dealt
with in this book for the sake of completeness. The field is regulated in South Africa by
the Occupational Health and Safety Act,491 which obviously focuses on health and safety
issues affecting employees in the workplace, but emphasis will be given here to the issues
which affect the broad population and the environment generally. The hazards created by
working activity are not insignificant in their possible impact on the general public, as is
evident in the disasters at Bhopal and Seveso and, in South Africa, Merriespruit.
490
See Michael Kidd ‘DDT, malaria control and the Stockholm Convention on Persistent Organic Pollutants’
(2007) International Law-making and Diplomacy Review 213.
491
Act 85 of 1993.

The purpose of the Act (which binds the state,492 as stated in the long title) is to provide
for the health and safety of persons at work and for the health and safety of persons in
connection with the use of plant and machinery; the protection of persons other than
persons at work against hazards to health and safety arising out of or in connection with
the activities of persons at work; to establish an advisory council for occupational health
and safety and to provide for connected matters.
In addition to various duties of employers to their employees,493 the Act also provides
for the duties of employers and self-employed persons to persons other than their employ-
ees. It is provided that every employer shall conduct his undertaking in such a manner as
to ensure, as far as is reasonably practicable, that persons other than those in his employ-
ment who may be directly affected by his activities are not thereby exposed to hazards to
their health or safety.494
The next aspect of the Act which is of relevance to the general public is the general
duties of the employees at work. Every employee at work is, inter alia, under a duty to
take reasonable care for the health and safety of himself and of other persons who may be
affected by his acts or omissions.495
The health and safety of ‘any person’ is again important when it comes to the spe-
cial powers of inspectors. It is provided that whenever an employer performs an act,
or requires or permits an act to be performed, or proposes to perform an act or require
or permit an act to be performed, which in the opinion of an inspector threatens or is
likely to threaten the health or safety of any person, the inspector may in writing prohibit
that employer from continuing or commencing with the performance of that act or from
requiring that act to be continued or commenced with, as the case may be.496
Section 32 provides for formal enquiries and these can be held once the chief inspec-
tor has been requested to do so by ‘a person’ who produces prima facie evidence of an
offence. As far as offences and penalties are concerned, contravention of any of the sec-
tions mentioned here will constitute an offence and attract a fine not exceeding R50 000
and/or imprisonment for not more than one year.497 Moreover, if any employer does or
omits to do an act thereby causing ‘any person’ to be injured at a workplace, or any
user who does or omits to do an act in connection with the use of plant or machinery,
thereby causing any person to be injured, shall be guilty of an offence if the employer or
user were negligent. The maximum penalty for this is a R100 000 fine and/or two years’
imprisonment.498
There are several sets of regulations which set out details about what prescribed
steps employers must take to ensure that employees are safe.499 The regulations include
492
Section 47.
493
Section 8.
494
Section 9(1). The same applies mutatis mutandis to self-employed persons (s 9(2)).
495
Section 14(a).
496
Section 30(1)(a).
497
Section 38(1).
498
Section 38(2).
499
In terms of s 43.

‘environmental regulations for workplaces’.500 These include thermal requirements; light-

ing; windows; ventilation; housekeeping (ie maintenance of premises etc); noise; precau-
tions against flooding; and fire precaution and means of egress.
In assessing the provisions of the Act in so far as they relate to protection of the general
public, a question which has been raised is:
whether these protections can be effective without giving affected communities rights equiva-
lent to those enjoyed by employees, particularly the right to information. Generally, commu-
nities will not be aware of the chemicals and other toxins that may be used in plants in their
vicinity.501
This criticism has been addressed, at least in part, by the right to information in the
Constitution,502 and the Promotion of Access to Information Act.503
13. Integrated pollution control

The characteristics of South African pollution control law that stand out are that it is
media-specific (that is, that there is separate legislation for air, water and land and, indeed,
for different types of pollutants) and that administrative control is fragmented. The latter
observation is not only true of the different types of pollution, but it is often the case that
there are a number of different control authorities for one type of pollution.
This state of affairs is undesirable for a number of reasons, among them the fact that
pollutants often travel across different media and that fragmented control is inefficient.
Our pollution control regime can easily lead to a problem being simply moved from one
medium to another. For example, an air pollution control measure which requires the
installation of air filters may produce sludge which needs to be disposed of on land.
The problem of direct transfers of pollutants from one medium to another is com-
pounded by indirect transfers resulting from physical, chemical and biological forces.504
These include leaching, volatilisation and deposition. Leaching occurs when pollutants,
particularly toxics, are dissolved and percolate or move from waste disposal sites into
groundwater. Volatilisation is the process of vaporisation that shifts pollutants from land
or water to the air. Deposition is the transfer of pollutants from the air to land and water.
Acid rain is a very good example of deposition. In addition to these physical processes,
indirect transfers may occur when a pollutant’s chemical structure and toxicity change as
it moves through the environment.505
The solution to the problem is a system of integrated pollution control, which can be
defined as the range of organisational and legislative changes that enable institutions to
500
GN R2281 in GG 10988 of 16 October 1987 as amended by GN R1754 in GG 12054 of 18 August 1989.
Regulations under the repealed Machinery and Occupational Safety Act 6 of 1983 are deemed to have been
made under s 43 of the 1993 Act (s 43(5)).
501
Clive Thompson & Paul Benjamin South African Labour Law (1995) at G1–28.
502
See above, 27.
503
Act 2 of 2000.
504
Lakshman Guruswamy ‘The case for integrated pollution control’ (1991) 54 Law and Contemporary Prob-
lems 41 at 42.
505
Ibid at 43.

deal with the connected nature of environmental problems.506 The benefits of IPC include
the recognition of the interrelatedness of the various media, better efficiency, facilitation of
policy-making and simplification of administration.507
South Africa produced a White Paper on Integrated Pollution and Waste Management
for South Africa,508 the objectives of which are set out in Part 2 of this chapter.509 Accord-
ing to the White Paper,510
‘Integrated pollution and waste management is a holistic and integrated system and
process of management, aimed at pollution prevention and minimisation at source,
managing the impact of pollution and waste on the receiving environment and remedi-
ating damaged environments.
This White Paper on Integrated Pollution and Waste Management for South Africa
represents a paradigm shift from dealing with waste only after it is generated (i.e. “end
of pipe”) towards:
●● pollution prevention;
●● waste minimisation;
●● cross-media integration;
●● institutional integration, both horizontal and vertical, of departments and spheres
of government; and
●● involvement of all sectors of society in pollution and waste management.’
The substantive emphasis of the White Paper, however, seems to be more on prevention
and minimisation of waste, rather than on cross-media and institutional integration. The
fact that there has been promulgation of a new media-specific pollution control Act (the
Air Quality Act) suggests that the notion of cross-media integration is perhaps not high
on the agenda.
As far as institutional integration is concerned, there have been some positive develop-
ments, such as transferring the control of waste disposal sites from the Department of
Water Affairs and Forestry to Environmental Affairs and Tourism. The Constitution’s
allocation of powers amongst different spheres of government, however, coupled with the
notion of concurrent legislative (and administrative) competence, means that institutional
fragmentation will always be part of the South African environmental legal landscape,
not only in the field of pollution and waste. It is important, therefore, that every effort
is made to prevent this becoming an obstacle to effective pollution control and waste
management.
506
Brussels Symposium on Integrated Pollution Control (1988), cited by Nigel Haigh and Frances Irwin (eds)
Integrated Pollution Control in Europe and North America (1990) at 9.
507
See Michael Kidd ‘Integrated pollution control in South Africa — How easy a task?’ (1995) 2 SAJELP 37.
508
(n 15).
509
See above, 145.
510
At 10.

7
Land Use and Planning
The manner in which land is used clearly has an impact upon the environment, and there-
fore land-use planning is a vital component of environmental management. Historically,
environmental concerns were not directly addressed by land-use planning legislation,
nor, indeed, by the common law. Today, however, environmental considerations are often
at the forefront of factors taken into account in land-use decisions.
This chapter will examine the law relating to land use and planning generally: first the
common law, then legislation. The latter analysis will include consideration of heritage
legislation, which is not strictly land use legislation but does affect land use. This will be
followed by a consideration of two important aspects for land use and planning: first, the
regulation of mining, particularly in respect of its environmental impact, and, second,
land use in a sensitive area which is the focus of much attention — the coastal zone.
Finally, the chapter will survey the law relating to environmental impact assessments or
similar studies which are considered in the planning and development process.
1. Land use and the common law

The South African common law of material property is almost exclusively based on
Roman-Dutch principles, which emerged in the seventeenth and eighteenth centuries.
This development took place before the rise of environmental concern, which is essen-
tially a side effect of the industrial era. Consequently, ‘Roman-Dutch law as such contains
neither a special discipline concerned with environmental conservation in the modern
sense nor any remedy that could effectively combat modern environmentally detrimental
land uses’.1
One of the major obstacles to the development of environmental land-use control is the
feature of our common law of property which regards ownership as ‘an absolute, abstract
and exclusive right that allows an owner to use his property as he deems fit’.2 Yet this right
has always been curtailed to an extent, since the common law also permits an owner’s
rights to be restricted by limitations imposed by law.
The rights flowing from ownership are limited by the interests of neighbouring land-
owners in accordance with the principle sic utere tuo ut alienum non laedas.3 Originally
invoked in our law by application of the English law nuisance doctrine, this principle
maintained its applicability despite the Appellate Division’s repudiation of the English
law of nuisance in Regal v African Superslate (Pty) Ltd.4 Owners’ rights, therefore, are
1
AJ van der Walt ‘Roman-Dutch law and environmental land-use control’ (1992) 7 SA Public Law at 1.
2
Van der Walt (n 1) at 6.
3
Use your property in such a way that it does not annoy others.
4
1963 (1) SA 102 (A) at 107A.
209

limited in so far as they can only be exercised up to the point that they do not interfere
with a neighbour’s rights to the use and enjoyment of his property.5
The question might be raised as to whether this principle can be extended to restricting
owners’ rights in order to prevent wrongs to the environment. Although it is based upon
the concept of reasonableness and normality of land use, there is little else inherent in
the principle — which was developed to address the physical relationship created by the
occupation and use of contiguous land — that would lend itself to the use of the principle
for purposes of environmental conservation.6
A second way in which the absolute concept of ownership is limited in our law is
by means of existing land-use legislation. Before 1994, any common-law rights could
be amended or overridden by legislation owing to the doctrine of parliamentary sover-
eignty.7 Perhaps the most extensive limitations have been provided by town-planning
legislation. This and other legislation relating to use of land will now be examined.
2. Land use and legislation

2.1 The objects of land-use planning legislation
The objects of land-use planning legislation have been summarised as follows:
the use of land is controlled (1) for cadastral reasons (in order to ensure that land units are of a
proper size and location in order to achieve proper usage for residential and other purposes); (2)
in the interest of promoting health, welfare and amenities offered to people living together in
urbanised society (achieved through the zoning of land-uses in town-planning schemes); (3) to
prevent nuisance; (4) to promote the proper and efficient exploitation of land as an agricultural
and industrial resource (achieved through national and regional planning); (5) in order to protect
and conserve the natural environment.8
The author indicates that formerly in South Africa there was another reason: the promo-
tion of racial segregation through the apartheid system. The legacy of this system has
given rise to another object of land-use planning: reconstruction and development and
the redress of past inequities as regards land. Much of the legislation aimed at this is not
exclusively aimed at land-use planning, but those aspects which are of relevance to land
use and conservation of the environment will be examined here.
This section will examine the different enactments in turn, which should be considered
in the light of the objects set out above. Some of the legislation examined here is not
primarily concerned with land use, but its application will have an impact on land use.
Emphasis will be given to those aspects of this legislation that are of relevance to the
environment.
5
See Gien v Gien 1979 (2) SA 1113 (T).
6
Van der Walt (n 1) at 6–9.
7
Under the new constitutional dispensation, interference with property rights is somewhat more compli-
cated. See discussion in Chapter 3 at 28–9.
8
PE Claassen & JRL Milton ‘Land-use planning’ in RF Fuggle & MA Rabie Environmental Management
in South Africa (1992) at 726.

Land Use and Planning 211
2.2 Town-planning legislation

Town-planning legislation first evolved out of ‘the massive health, welfare, and housing
problems created by the urbanisation and industrialisation of society brought about by
the Industrial Revolution’.9 It was introduced into South Africa in 1931. According to
Milton,
Town-planning schemes are an institutionalised process for organizing the components of
urbanised human settlement in such a way as to enhance welfare, prosperity, and progress to
the highest feasible level. In practice the process involved the development of a set of legally
enforceable prescriptions which direct, control, and regulate the existing and future uses that
owners of immovable property may make of their property.10
There is no national town-planning legislation, but each of the erstwhile four provinces
has its own town-planning ordinance,11 and there is a host of legislation which applies
in the former self-governing territories and TBVC states.12 KwaZulu-Natal has enacted
post–1994 town planning legislation in the form of the Planning and Development Act.13
Among the most important functions of town-planning legislation are subdivision control
and zoning.
Subdivision control is aimed at controlling the process of urbanisation in such a way
that the objects of welfare, efficiency and amenity are achieved.14 Welfare consists of the
objectives of promoting health, safety, order, convenience and general welfare whilst
efficiency relates to considerations like efficient infrastructure and communications.
Amenity has been stated to mean ‘much more than visually aesthetic and includes all
that is seen, heard, felt or smelt, in other words everything that stimulates the senses in a
pleasant manner’.15 Subdivision control is achieved, as a general rule, by means of allow-
ing subdivision only with the permission of the relevant authorities.16 This permission
will be given only after consideration of a plan setting out the size of the pieces of land
and the details of the infrastructure (streets, sewers, etc).
9
JRL Milton ‘Ownership’ in Reinhard Zimmerman & Daniel Visser (eds) Southern Cross: Civil Law and
Common Law in South Africa (1996) 657 at 682.
10
Ibid at 682–3.
11
Cape Land Use Planning Ordinance 15 of 1985; Natal Town Planning Ordinance 27 of 1949; Transvaal
Town-Planning and Townships Ordinance 15 of 1986 and the Division of Land Ordinance 20 of 1986 and
the Orange Free State Townships Ordinance 9 of 1969.
12
The full list of town-planning legislation in these areas is too extensive to make full reference here.
13
Act 6 of 2008. Other relevant legislation is the KwaZulu-Natal Rationalisation of Planning and Develop-
ment Laws Act 2 of 2008 and KwaZulu-Natal Town Planning Ordinance Amendment Act 3 of 2008.
14
See, for example, s 40(1) of the Natal Ordinance (supra). See also JRL Milton ‘Planning and property’
1985 Acta Juridica 267 at 269, where he states that ‘the aim of town planning essentially is to combine [the
disciplines of, inter alia, architecture, land surveying, engineering, economics and sociology] to produce
a plan which would serve as a guide to reorganizing and shaping the future development of an urban area
to achieve the utopia of a safe, healthy, prosperous, and productive environment for human existence and
endeavour’.
15
TB Floyd More About Town Planning in South Africa (1966) at 25.
16
See s 23 of the Cape Ordinance; s 16(1)(h) of the Natal Ordinance; s 92 of the Transvaal Ordinance (15 of
1986); s 20 of the OFS Ordinance (supra n 8).

Zoning refers to the process whereby a town is delimited into a variety of regulated and
co-ordinated use ‘zones’, which determine the type of activity to be carried on there.17
A town-planning scheme will typically zone land as residential, industrial, commercial,
educational, institutional, agricultural or open. It will also usually contain ‘bulk and
coverage’ provisions which regulate the manner and extent to which the owner may erect
buildings and structures on his property.18 The scheme will specify the purposes for
which land in each zone may or may not be used, and the scheme itself (in the form of a
plan and accompanying manual) acquires the force of law.19 If a person wishes to use land
for a purpose not specified by the scheme, then the local authority’s consent is required
for that land use, if it is reasonable. For instance, it may be that a local authority allows
a doctor to operate a surgery from his home in a residential zone, but it would not allow
an industrial land use in a residential zone. The zoning concept has largely replaced the
importance of nuisance or neighbour law as a land-use mechanism.20
Town-planning legislation clearly restricts the freedom of choice of landowners to use
and develop their property as they see fit. Such restrictions are traditionally not seen as
compensatable restrictions but rather as restraints placed upon ownership in the interests
of the public good.21
2.3 Physical Planning Act 125 of 1991

The objective of this Act is to ‘ensure the orderly physical development of the Republic’,22
through certain specified planning processes, although it does not lay down any direct
land-use control measures. The Act provides that the Minister of Regional and Land
Affairs may divide the country into two or more development regions, which may in turn
be divided into two or more planning regions.23 The Act provides for a hierarchy of policy
plans, each type of which is applicable in a different type of region. A policy plan consists
of broad guidelines for the future physical development of the area to which that policy
plan relates,24 and it may provide that land shall be used only for a particular purpose.25
The policy plan’s object is to promote the orderly physical development of the area to
which that policy plan relates to the benefit of all its inhabitants.26
The different types of policy plans, together with their areas of applicability, are as
follows:
●● national development plan (Republic);27
●● regional development plan (development region or portion thereof );28
17
Milton (n 14) at 272.
18
Milton (n 9) at 683.
19
Ibid.
20
Claassen & Milton (n 8) at 727.
21
Milton (n 14) at 267 and 274ff.
22
Long title.
23
Section 3.
24
Section 6(1).
25
Section 6(2).
26
Section 5.
27
Section 4(1)(a).
28
Section 4(1)(b).

●● regional structure plan (planning region);29 and

●● urban structure plan (area of jurisdiction of a local authority or portions thereof, or for
the region of a regional authority, or portions thereof ).30
The latter consists of guidelines for the future development of the area to which that
urban structure plan relates, and would in practice provide the most detail of the various
types of plan envisaged by the Act.
The legal effects of regional and urban structure plans is that provision in either exist-
ing or new town-planning schemes for zoning of land for a purpose inconsistent with a
plan is prohibited; there is a prohibition on use of any land to which a plan applies for
a purpose other than the purpose for which it was being used immediately before the
date of commencement of the plan, or for which it is zoned in terms of a town-planning
scheme for the area; there is a prohibition on the granting of authority for subdivision of
any land to which a plan applies for a purpose inconsistent with the plan; and all land
in an area to which a plan applies which in terms thereof may be used for agricultural
purposes only, other than agricultural land as defined in the Subdivision of Agricultural
Land Act,31 shall be excluded from the provisions of the last-mentioned Act.32
The Physical Planning Act 125 of 1991 repealed most provisions of its predecessor of
the same name, Act 88 of 1967.33 The earlier Act made provision for guide plans which, in
terms of a transitional provision of the 1991 Act, will either continue to exist and operate
as if the earlier Act had not been repealed, or may be converted into regional or urban
structure plans in terms of the new Act.34
The significance of the 1991 Act is that:
By consolidating existing legislation on physical planning, the Act has created a new framework
within which most of the present system of town planning schemes can continue. By establish-
ing a strict hierarchy of [the plans discussed above] it is foreseen that the urban structure plan
will provide a broad basis for uniformity and solve the present inconsistency and uncertainty
which have serious implications for legal and planning practice.35
At the time of writing, however, the Act had not yet been utilised.
2.4 Subdivision of Agricultural Land Act 70 of 1970

The purpose of this Act is to control the subdivision and, in connection therewith, the use
of agricultural land. In short, it prohibits the subdivision of such land without the written
consent of the Minister of Agriculture.36 The rationale behind the Act is to prevent the
subdivision of agricultural land into uneconomic units. In Wary Holdings (Pty) Ltd v
Stalwo (Pty) Ltd,37 the majority of the Constitutional Court set aside an agreement of sale
29
Section 4(2).
30
Section 22.
31
Act 70 of 1970 (s 1). This Act is discussed below.
32
Section 27(1).
33
Section 36.
34
Section 37.
35
CG van der Merwe ‘Law of property’ 1991 Annual Survey of South African Law 121 at 129.
36
Section 3.
37
2009 (1) SA 337 (CC).

containing a suspensive condition requiring the subdivision of land that the court decided
was agricultural land. The minority, however, decided that the Act is inconsistent with
the Constitution as it intrudes into powers and functions allocated by the Constitution to
local and provincial bodies:
Our Constitution requires municipal planning to be undertaken by municipalities. To continue
to accord this planning function to the national Minister of Agriculture and Land Affairs in
relation to agricultural land would be at odds with the Constitution in two respects. First, it
would negate the municipal planning function conferred upon all municipalities. Secondly,
it may well trespass into the sphere of the exclusive provincial competence of provincial
planning.38
2.5 Less Formal Townships Establishment Act 113 of 1991

The primary object of this Act is to provide for shortened procedures for the designa-
tion, provision and development of land, and the establishment of townships, for less
formal forms of residential settlement. One provision in the Act which could possibly be
detrimental to orderly planning and environmental conservation is s 12, which provides
that the Administrator may exclude an application for the establishment of a township, or
such township itself, from the application of a provision of a law mentioned in the notice
and in respect of which the province concerned has legislative competence if he is of the
opinion that such provision will have an unnecessary dilatory effect on the disposal of the
application or the establishment of the contemplated township or will otherwise be inap-
propriate in respect of the application or the establishment of the township.39 Although
there are some limits to the power of the Administrator in this regard, notably that the
decision made must comply with the principles of legality, it is conceivable that regula-
tory provisions aimed at conservation of the environment could in effect be ignored in
certain circumstances.
2.6 Abolition of Racially Based Land Measures Act 108 of 1991

This Act is probably the most important of those which have as their object the removal
of the racial content of the country’s erstwhile apartheid land laws. One aspect of the Act
is the ‘somewhat controversial’40 Chapter VII, which provides for the regulation of norms
and standards in residential environments. The measures contained in this chapter have
the object of preventing nuisance in residential areas, and provide for the establishment
of by-laws applicable to a particular neigbourhood or sectional title scheme of at least one
hundred units.41 Such by-laws may deal with issues such as overcrowding of residential
premises, use for habitation of premises which are unfit for that purpose, maintenance of
residential premises in a clean and hygienic condition, and other conditions which may be
regarded as nuisances.42 The by-laws in question are drawn up by a majority of all owners
38
Ibid at para [131].
39
Section 12(1)(a).
40
Van der Merwe (n 35) at 122.
41
Section 97.
42
Section 98.

of residential premises in a neighbourhood and must be put into operation by the local
authority concerned.43
This legislation clearly has potential relevance for land use in areas where such meas-
ures are taken. It is submitted, though, that its necessity is questionable. It would seem
that it arose out of the fears of mainly white South Africans that the lifting of racially
segregationist legislation like the Group Areas Act 36 of 1966 would lead to an influx
into previously ‘white’ residential areas of blacks who would supposedly crowd too many
people into residential premises and occupy such premises in an unsavoury manner. The
Act does provide that any by-law created in terms of this chapter which discriminates on
the ground of race, colour or religion or is grossly unfair shall be of no force or effect,44
yet it is difficult to escape the impression that these provisions have racist undertones.
2.7 Development Facilitation Act 67 of 1995

According to the Green Paper on South African Land Policy,45 ‘in the context of land
reform, the prime purpose of land development policy is to establish a framework and
procedures to facilitate the speedy release of land for urban and rural development
programmes which will benefit those who were marginalised by previous apartheid
policies.’46
Many of the legacies of apartheid as far as land use is concerned are difficult to address
through the use of existing land-use planning legislation. These legislative and financial
constraints have resulted in a scarcity of land for low-income housing, for example. One
of the consequences of this, certainly ten years ago, was an increasing incidence of land
invasions.
The policy of the state in 1996 was that ‘current legislative incoherence must be
transformed into an integrated, efficient and equitable planning and development system
that establishes a balance between the public interest and private property rights’.47 The
Development Facilitation Act (DFA) was seen as a key means of achieving this objective.
The basic aim of the Act is to introduce extraordinary measures to facilitate and speed
up the implementation of reconstruction and development programmes and projects in
relation to land and in doing so lay down general principles governing land development
throughout the Republic.48 The Act establishes an administrative framework designed
to implement the provisions of the Act in the form of the National Development and
Planning Commission,49 provincial commissions and provincial development tribunals.50
While this is not the place to examine the Act in detail, attention will be given to
those aspects of the Act that have relevance to environmental conservation. First, the
general principles for land development and conflict resolution contain references to
environmental considerations. It is provided that policy, administrative practice and laws
43
Section 98(2).
44
Section 99(1).
45
Department of Land Affairs (DLA) (February 1996).
46
Ibid at 59.
47
Ibid at 61.
48
Long title.
49
See Chapter II of the Act.
50
Chapter III of the Act.

should promote efficient and integrated land development in that they, inter alia, encour-
age environmentally sustainable land development practices and processes.51 Further, the
promotion of sustained protection of the environment is laid down as a factor to be taken
into account in the promotion of sustainable land development.52
The task of the National Development and Planning Commission is to advise the
Minister (or other specified officials) on certain matters,53 including the integration of
environmental conservation with planning at different levels of government,54 and policy
and laws relating to, inter alia, environmental sustainability and heritage conservation.55
The Act also provides that competent local government bodies may set land develop-
ment objectives for the area in question.56 The subject matter of the land development
objectives includes the sustained utilisation of the environment,57 and the optimum uti-
lisation of natural resources.58 The functionary in question may require the persons or
bodies determined by him or her to carry out environmental evaluations in order to assess
the likely impact of any land development objective upon the environment.59
In a set of regulations issued under the Act,60 it is provided that, unless the designated
officer61 in appropriate circumstances otherwise directs, a land development applicant
shall include in the application an initial environmental evaluation, prepared in accord-
ance with the integrated environmental management guidelines62 or other requirements
which are from time to time issued or amended by the national Department of Environ-
mental Affairs and Tourism.63 The designated officer is then required to recommend to
the tribunal whether a comprehensive environmental impact report is necessary.64
Although this Act, when it was enacted, was seen as an instrument for reconstruc-
tion and development, its procedures have been embraced by developers of the types
of upmarket development that the drafters of the legislation could not have conceived.
Numerous rural residential developments, primarily on formerly agricultural land, have
been approved by means of the DFA approval process. It would appear that the main
reason for this is expedition of the planning approval process. Despite the quicker deci-
sions, the approval still requires environmental authorisation, although this is sometimes
expedited.
51
Section 3(1)(c)(viii).
52
Section 3(1)(h)(iii).
53
Section 6.
54
Section 14(a)(vii).
55
Section 14(c).
56
Section 27.
57
Section 28(1)(b)(ii).
58
Section 28(1)(b)(viii).
59
Section 28(2).
60
GN R1412 in GG 17395 of 30 August 1996.
61
An appropriate officer in a provincial administration or in the employ of a local government body, desig-
nated by the MEC to serve as the designated officer for Chapter V or VI of the Act, which deal with land
development procedures (s 1).
62
Discussed below, 238ff.
63
Regulation 27(1).
64
Regulation 27(2).

In addition, because of an apparent lack of capacity within many municipal authorities,

the DFA’s development approval procedure has become the default procedure for rezoning
and township development in many parts of the country, as recognised by the Constitu-
tional Court in City of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal.65 The central issue in this case was the constitutionality of Chapters V and VI
of the DFA, which authorise provincial development tribunals to determine applications
for the rezoning of land and the establishment of townships. A dispute arose between the
Gauteng Development Tribunal and the City of Johannesburg concerning which body
had the constitutional competence to make these decisions. The Constitutional Court
was required to consider the decision in order to confirm the SCA’s decision that the
provisions were unconstitutional.
The essence of the City’s constitutional challenge was that the powers in question are
local government matters over which local government has exclusive authority. In the
alternative, it was contended that the powers fell under the functional area of ‘municipal
planning’, which is a local government matter. The High Court’s dismissal of the applica-
tion rested on the finding that ‘municipal planning’ was confined to the act of forward
planning and that the implementation of the resultant plans was not an exclusive local
government matter but rather fell under ‘urban and rural development’, which was a
concurrent competence.
The SCA, on the other hand, held that decisions relating to rezoning and township
establishment did fall under ‘municipal planning’ and that, consequently, by authorising
the Tribunal to make such decisions, the Act is inconsistent with the Constitution. The
SCA set aside Chapters V and VI, but suspended the operation of the invalidity.
In considering the impugned Chapters of the DFA, the Constitutional Court pointed
out that the central provision in Chapter V is s 33, which has a:
reach … [that] is so wide that it covers almost all land in the country. It applies to all land devel-
opment applications irrespective of where the land is located and regardless of whether some
other law governs development on it.66
Chapter VI is almost identical to Chapter V, except that it deals with small-scale farming.
The court, after some discussion, held that:
‘planning’ in the context of municipal affairs is a term which has assumed a particular, well-
established meaning which includes the zoning of land and the establishment of townships.
In that context, the term is commonly used to define the control and regulation of the use of
land. There is nothing in the Constitution indicating that the word carries a meaning other than
its common meaning which includes the control and regulation of the use of land. It must be
assumed, in my view, that when the Constitution drafters chose to use ‘planning’ in the munici-
pal context, they were aware of its common meaning. Therefore, I agree with the Supreme
Court of Appeal that in relation to municipal matters the Constitution employs ‘planning’ in its
commonly understood sense. As a result I find that the contested powers form part of ‘municipal
planning.67
In response to the argument that the functional area of ‘urban and rural development’
includes the powers in dispute, the court held that, in the context of the notion of each
65
2010 (6) SA 182 (CC).
66
Ibid at para [40].
67
Ibid at para [57].

sphere of government having its own functions, this did not include municipal planning.68
Consequently the court held that the Chapters V and VI of the DFA were inconsistent
with the Constitution (s 156 read with Part B of Schedule 4).
A very interesting aspect of the judgment concerned the remedy, as it raised aspects of
current municipal planning practice that are cause for concern. Immediate and retrospec-
tive (to the date of the Constitution’s coming into effect) invalidity, it was argued, would
seriously undermine municipal planning in the country. The reasons for this were, first,
the lack of capacity in many municipalities in the country thus making the Development
Tribunals the only feasible alternative for decisions of this nature. Immediate invalidity
of the impugned chapters would consequently lead to a breakdown in municipal planning
in many parts of the country. In addition, there were problems with the lack of municipal
planning legislation and procedures in those parts of the country that had previously been
‘independent homelands’ and self-governing territories. The court decided that the dec-
laration of invalidity would be suspended for 24 months in order for these shortcomings
to be addressed. On the other hand, it held that, given the capacity in the City of Johan-
nesburg and eThekwini Municipality to exercise these powers appropriately, tribunals
should be prohibited from making such decisions within these cities’ areas of jurisdiction
(on a prospective basis).
The court also decided, in the context of the suspension, that the powers conferred in
ss 33(2) and 51(2) of the Act — to exclude the operation of certain laws in respect of land
which is subject to decision in the Tribunal — would cease to operate.
There was clearly little choice facing the court as regards the remedy: the alternative
(immediate invalidity) would have lead to chaos and impeded development in many parts
of the country. Will two years (from 18 June 2010, when judgment was delivered) be
enough to address the problems? This is not just a matter of legislation providing for
wall-to-wall development planning procedures (to incorporate the former homelands) but
also will surely require extensive capacity-building in those municipalities where these
decisions have not been made in the recent past. This is not a challenge to be taken lightly.
2.8 National Environmental Management Act 107 of 1998

Both NEMA and the Act it largely replaced, the Environment Conservation Act,69
required specific activities to be authorised on the basis of environmental impact assess-
ment before commencing. This is a pivotal aspect of land use law today and is discussed
in detail later in the Chapter.70
2.9 National Heritage Resources Act 25 of 1999

The National Heritage Resources Act introduces a new dispensation for the conserva-
tion of what used to be called ‘national monuments’ and what will now be known as
‘heritage resources’. A heritage resource is any place or object of cultural significance.
The Act broadens and enriches the idea of what is or should be (in the old parlance) a
‘national monument’. The Act refers to the cultural heritage resources of South Africa as
68
Ibid at para [63].
69
Act 73 of 1989.
70
At 195.

the ‘national estate’. Section 3 provides that for the purposes of this Act, those heritage
resources of South Africa which are of cultural significance or other special value for the
present community and for future generations must be considered part of the national
estate and fall within the sphere of operations of heritage resources authorities. The
national estate may include (this is a non-exclusive list):
‘(a) places, buildings, structures and equipment of cultural significance;
(b) places to which oral traditions are attached or which are associated with living
heritage;
(c) historical settlements and townscapes;
(d) landscapes and natural features of cultural significance;
(e) geological sites of scientific or cultural importance;
(f) archaeological and palaeontological sites;
(g) graves and burial grounds, including—
(i) ancestral graves;
(ii) royal graves and graves of traditional leaders;
(iii) graves of victims of conflict;
(iv) graves of individuals designated by the Minister by notice in the Gazette;
(v) historical graves and cemeteries; and
(h) sites of significance relating to the history of slavery in South Africa.’71
The Act also provides that a place or object is to be considered part of the national estate
if it has cultural significance or other special value because of:
‘(a) its importance in the community, or pattern of South Africa’s history;
(b) its possession of uncommon, rare or endangered aspects of South Africa’s natural
or cultural heritage;
(c) its potential to yield information that will contribute to an understanding of South
Africa’s natural or cultural heritage;
(d) its importance in demonstrating the principal characteristics of a particular class
of South Africa’s natural or cultural places or objects;
(e) its importance in exhibiting particular aesthetic characteristics valued by a com-
munity or cultural group;
(f) its importance in demonstrating a high degree of creative or technical achieve-
ment at a particular period;
(g) its strong or special association with a particular community or cultural group for
social, cultural or spiritual reasons;
(h) its strong or special association with the life or work of a person, group or organi-
sation of importance in the history of South Africa; and
(i) sites of significance relating to the history of slavery in South Africa.’72
A three-tier system of heritage resources is contemplated by the Act: national, provincial
and local. Consistently with this, the national estate will be graded by the South African
Heritage Resources Agency (SAHRA)73 and provincial MECs as:
71
Section 3(2).
72
Section 3(3).
73
Established in terms of s 11.

●● Grade I: Heritage resources with qualities so exceptional that they are of special
national significance;
●● Grade II: Heritage resources which, although forming part of the national estate, can
be considered to have special qualities which make them significant within the con-
text of a province or a region; and
●● Grade III: Other heritage resources worthy of conservation74
The Act makes provision in Chapter II for mechanisms for the protection and manage-
ment of heritage resources. These include the recognition of:
●● National heritage sites and provincial heritage sites;75
●● Protected areas;76
●● Heritage registers;77 and
●● Heritage areas.78
The law relating to conservation of heritage resources is at the periphery of environmen-
tal law, but clearly it does have significance as far as land-use planning is concerned.
The cultural impact of development is something that must be considered, as discussed
below.79 It is also apparent, however, that a heritage resource does not have to be some-
thing made by humans and natural objects can be and often are identified as heritage
resources.
2.10 Other legislation

There is a variety of other legislation which also has relevance to land-use planning.
Among these are the Conservation of Agricultural Resources Act,80 which provides for
the declaration of control measures in respect of certain types of land use;81 and the
Upgrading of Land Tenure Rights Act,82 which provides for the formalisation of town-
ships, whereby informal settlements can be formalised. Much of the legislation discussed
in the chapter on pollution and waste also affects land use, as does the National Water
Act.83 Land use is also controlled in a specific manner in the variety of protected areas
which exist in South Africa. The relevant legislation in this regard is discussed in
Chapter 5.
74
Section 7.
75
Section 27.
76
Section 28.
77
Section 30.
78
Section 31.
79
See 257ff.
80
Act 43 of 1983.
81
Section 6. See above, 132.
82
Act 112 of 1991.
83
Act 36 of 1998 — see Chapter 4.

3. Mining and the environment

Mining is regulated by the Mineral and Petroleum Resources Development Act
(MPRDA),84 which repeals, inter alia, the Minerals Act,85 which itself consolidated virtu-
ally all previous mining legislation. The preamble to the new Act affirms that the State’s
obligation is to protect the environment for the benefit of present and future generations,
to ensure ecologically sustainable development of mineral and petroleum resources and
to promote economic and social development. Before considering the relevant provisions
in the MPRDA, it should be noted that mining operations are also subject to EIA pro-
cedure in terms of the National Environmental Management Act, discussed below. The
overlap or conflict between the MPRDA provisions relating to environmental impact and
the relevant provisions under NEMA and its regulations are discussed at the end of this
section.
Chapter 4 of the Act, entitled ‘Mineral and Environmental Regulation’, covers the pro-
cess for the application and granting of reconnaissance, prospecting and mining rights.
One of the prerequisites for the granting of a prospecting right by the Minister of Miner-
als and Energy is that the prospecting will not result in unacceptable pollution, ecological
degradation or damage to the environment.86 An applicant for a prospecting right must
submit an environmental management plan.87 The same prerequisite applies in respect
of the granting of a mining right,88 application for which must be accompanied by an
environmental impact assessment and environmental management programme.89
An applicant for a mining permit is also required to submit an environmental manage-
ment plan.90
The national environmental management principles in the National Environmental
Management Act91 apply to all prospecting and mining operations and any matter relat-
ing to such operations and serve as guidelines for the interpretation, administration
and implementation of the environmental requirements of the Mineral and Petroleum
Resources Development Act.92 Any prospecting or mining operation must be conducted
in accordance with generally accepted principles of sustainable development by integrat-
ing social, economic and environmental factors into the planning and implementation of
prospecting and mining projects in order to ensure that exploitation of mineral resources
serves present and future generations.93
84
Act 28 of 2002.
85
Act 50 of 1991.
86
Section 17(1)(c).
87
Section 16(4)(a). An ‘environmental management plan’ is a plan to manage and rehabilitate the environ-
mental impact as a result of prospecting, reconnaissance, exploration or mining operations conducted
under the authority of a reconnaissance permission, prospecting right, reconnaissance permit, exploration
right or mining permit, as the case may be (s 1).
88
Section 23(1)(d).
89
Section 22(4)(a).
90
Section 27(5).
91
Act 107 of 1998.
92
Section 37(1).
93
Section 37(2).

The holder of a reconnaissance permission, prospecting right, mining right, mining

permit or retention permit:
‘(a) must at all times give effect to the general objectives of integrated environmental
management laid down in the National Environmental Management Act;94
(b) must consider, investigate, assess and communicate the impact of his or her pros-
pecting or mining on the environment;
(c) must manage all environmental impacts in accordance with his or her environ-
mental management plan or approved environmental management programme,
where appropriate, and as an integral part of the reconnaissance, prospecting or
mining operation, unless the Minister directs otherwise (and failure to do so is an
offence);95
(d) must as far as it is reasonably practicable, rehabilitate the environment affected
by the prospecting or mining operations to its natural or predetermined state or
to a land use which conforms to the generally accepted principle of sustainable
development; and
(e) is responsible for any environmental damage, pollution or ecological degradation
as a result of his or her reconnaissance prospecting or mining operations and which
may occur inside and outside the boundaries of the area to which such right, permit
or permission relates.’96
The directors of a company or members of a close corporation are jointly and severally
liable for any unacceptable negative impact on the environment, including damage,
degradation or pollution advertently or inadvertently caused by the company or close
corporation which they represent or represented.97
Every person who has applied for a mining right must conduct an environmental impact
assessment and submit an environmental management programme within 180 days of
the date on which he or she is notified by the Regional Manager to do so.98 Any person
who applies for a reconnaissance permission, prospecting right or mining permit must
submit an environmental management plan as prescribed.99 An applicant who prepares
an environmental management programme or an environmental management plan must:
‘(a) establish baseline information concerning the affected environment to determine
protection, remedial measures and environmental management objectives;
(b) investigate, assess and evaluate the impact of his or her proposed prospecting or
mining operations on the environment; the socio-economic conditions of any per-
son who might be directly affected by the prospecting or mining operation; and
any national estate referred to in the National Heritage Resources Act;100
(c) develop an environmental awareness plan describing the manner in which the
applicant intends to inform his or her employees of any environmental risks
94
Chapter 5, discussed below, 239ff.
95
Section 98(a)(iii).
96
Section 38(1).
97
Section 38(2).
98
Section 39(1).
99
Section 39(2).
100
Act 25 of 1999, s 3(2) but excluding s 3(2)(i)(vi) and (vii).

which may result from their work and the manner in which the risks must be dealt
with in order to avoid pollution or the degradation of the environment; and
(d) describe the manner in which he or she intends to modify, remedy, control or stop
any action, activity or process which causes pollution or environmental degrada-
tion; contain or remedy the cause of pollution or degradation and migration of
pollutants; and comply with any prescribed waste standard or management stand-
ards or practices.’101
The Minister must, within 120 days from the lodgement of the environmental manage-
ment programme or the environmental management plan, approve the same, if it com-
plies with the above requirements; the applicant has made the necessary financial provi-
sion for remediation of environmental damage; and the applicant has the capacity, or has
provided for the capacity, to rehabilitate and manage negative impacts on the environ-
ment.102 The Minister may not approve the environmental management programme or
the environmental management plan unless he or she has considered any recommenda-
tion by the Regional Mining Development and Environmental Committee; and the com-
ments of any state department charged with the administration of any law which relates
to matters affecting the environment.103 The Minister may call for additional informa-
tion from the applicant and may direct that the environmental management programme
or environmental management plan in question be adjusted in such way as the Minister
may require.104 When considering an environmental management plan or environmental
management programme, the Minister must consult with any state department which
administers any law relating to matters affecting the environment.105
No person may prospect for or remove, mine, conduct technical co-operation operations,
reconnaissance operations, explore for and produce any mineral or petroleum or commence
with any work incidental thereto on any area without an approved environmental manage-
ment programme or approved environmental management plan, as the case may be.106 The
Act provides that the Minister must grant a prospecting right if several factors are present,
including that the prospecting will not result in unacceptable pollution, ecological degrada-
tion or damage to the environment,107 and there is a similar provision in respect of the grant
of a mining right.108 Both of these provisions have been amended by a 2008 amendment to
read ‘the mining will not result in unacceptable pollution, ecological degradation or dam-
age to the environment and an environmental authorisation is issued’.109 This amendment,
101
Section 39(3). Applications for reconnaissance permissions, prospecting rights or mining permits do not
require consideration of socio-economic conditions or development of an environmental awareness plan (s
39(7)).
102
Section 39(4)(a).
103
Section 39(4)(b).
104
Section 39(5). An environmental management programme or plan may be amended after consultation with
the holder of the right or permit in question (s 39(6)).
105
Section 40. The Minister must request the head of a department being consulted, in writing, to submit the
comments of that department within 60 days from the date of the request.
106
Section 5(4).
107
Section 17(1)(c).
108
Section 23(1)(d).
109
Section 17(1)(c) amended by s 13(a) and s 23(1)(d) by s 19(a) of the MPRD Amendment Act 49 of 2008
(emphasis added, indicating new insertion), see discussion below, 228.

however, although enacted, has yet to come into effect. The amendment would make it
much clearer as to the role played by the EIA in the rights-granting process.110
On the date upon which the environmental management programme is approved,
the prospecting111 and mining112 rights become effective. The holder of a prospecting
right must comply with the requirements of the approved environmental management
programme,113 as must the holder of a mining right.114
Residue stockpiles and residue deposits must be managed in the prescribed manner
on any site demarcated for that purpose in the environmental management plan or envi-
ronmental management programme in question.115 No person may temporarily or per-
manently deposit any residue stockpile or residue deposit on any site other than on such
a site.116 It is an offence not to comply with these residue management requirements.117
An applicant for a prospecting right, mining right or mining permit must, before the
Minister approves the environmental management plan or environmental management
programme, make the prescribed financial provision for the rehabilitation or manage-
ment of negative environmental impacts.118 If the holder of a prospecting right, mining
right or mining permit fails to rehabilitate or manage, or is unable to undertake such
rehabilitation or to manage any negative impact on the environment, the Minister may,
upon written notice to the holder, use all or part of the financial provision to rehabilitate
or manage the negative environmental impact in question.119 The holder of a prospecting
right, mining right or mining permit must annually assess his or her environmental liabil-
ity and increase his or her financial provision to the satisfaction of the Minister,120 who, if
he or she is not satisfied with the assessment and financial provision contemplated in this
section, may appoint an independent assessor to conduct the assessment and determine
the financial provision.121 The requirement to maintain and retain the financial provision
remains in force until the Minister issues a closure certificate to the holder, but the Min-
ister may retain such portion of the financial provision as may be required to rehabilitate
the closed mining or prospecting operation in respect of latent or residual environmental
110
See Tracy Humby ‘The black sheep comes home — incorporating mining into the environmental impact
assessment regime under the National Environmental Management Act, 1998’ (2009) 24 SA Public Law 1
at 26.
111
Section 17(5).
112
Section 23(5).
113
Section 19(2)(e).
114
Section 25(2)(e).
115
Section 42(1). ‘Residue deposit’ means any residue stockpile remaining at the termination, cancellation
or expiry of a prospecting right, mining right, mining permit, exploration right or production right; and
‘residue stockpile’ means any debris, discard, tailings, slimes, screening, slurry, waste rock, foundry sand,
beneficiation plant waste, ash or any other product derived from or incidental to a mining operation and
which is stockpiled, stored or accumulated for potential re-use, or which is disposed of, by the holder of a
mining right, mining permit or production right (s 1).
116
Section 42(2).
117
Section 98(a)(iv).
118
Section 41(1).
119
Section 41(2).
120
Section 41(3).
121
Section 41(4).

impacts.122 Section 41 of the MPRDA, dealing with the financial provision, has been
repealed by the 2008 MPRD Amendment Act,123 but that repeal has yet to come into
effect. Financial security for future rehabilitation will (after s 41’s repeal) be regulated by
s 24P of NEMA.
Even where mining operations have been discontinued, environmental problems
associated with mining frequently continue. Water emanating from an abandoned
mine may, by reason of its acidity, continue to cause the pollution of both surface and
groundwater.124 Dust from abandoned mine dumps, soil erosion, especially in the case
of abandoned opencast mines, and the dumping or impounding of solid or liquid waste,
constitute further environmental problems which continue after mining operations have
ceased. Furthermore, abandoned shafts, pits and other excavations, as well as subsid-
ences or cavities, hold considerable danger to public safety. In order to combat these
problems effectively — especially in the long term — provision should be made for the
rehabilitation of the affected surfaces, once mining operations finally cease.
The holder of a prospecting right, mining right, retention permit or mining permit
remains responsible for any environmental liability, pollution or ecological degradation,
and the management thereof, until the Minister has issued a closure certificate to the
holder concerned.125 On written application by such holder in the prescribed manner,
the Minister may transfer such environmental liabilities and responsibilities as may be
identified in the environmental management plan or the environmental management pro-
gramme and any prescribed closure plan to a person with such qualifications as may be
prescribed.126 The right or permit holder or the latter mentioned person, as the case may
be, must apply for a closure certificate upon:
‘(a) the lapsing, abandonment or cancellation of the right or permit in question;
(b) cessation of the prospecting or mining operation;
(c) the relinquishment of any portion of the prospecting of the land to which a right,
permit or permission relates; or
(d) completion of the prescribed closing plan to which a right, permit or permission
relates.’127
An application for a closure certificate must be made to the Regional Manager in whose
region the land in question is situated within 180 days of the occurrence of the laps-
ing, abandonment, cancellation, cessation, relinquishment or completion and must be
accompanied by the prescribed environmental risk report.128 No closure certificate may
be issued unless the Chief Inspector and the Department of Water Affairs and Forestry
have confirmed in writing that the provisions pertaining to health and safety and man-
agement of potential pollution to water resources have been addressed.129 When the Min-
122
Section 41(5).
123
Act 49 of 2008. See discussion below, 228.
124
See discussion of acid mine drainage, above 94ff.
125
Section 43(1).
126
Section 43(2).
127
Section 43(3).
128
Section 43(4).
129
Section 43(5).

ister issues a certificate he or she must return such portion of the financial provision as
the Minister may deem appropriate to the holder of the prospecting right, mining right,
retention permit or mining permit in question, but may retain any portion of such finan-
cial provision for latent and or residual environmental impact which may become known
in the future.130
When a prospecting right, mining right, retention permit or mining permit lapses, is
cancelled or is abandoned or when any prospecting or mining operation comes to an end,
the holder of any such right or permit may not demolish or remove any building, structure
or object:
‘(a) which may not be demolished or removed in terms of any other law;
(b) which has been identified in writing by the Minister for purposes of this section;
or
(c) which is to be retained in terms of an agreement between the holder and the
owner or occupier of the land, which agreement has been approved by the Minis-
ter in writing.’131
This does not apply to bona fide mining equipment, which may be removed.132 Demoli-
tion or removal contrary to these requirements is an offence.133
If any prospecting, mining, reconnaissance or production operations cause or result in
ecological degradation, pollution or environmental damage which may be harmful to the
health or well-being of anyone and requires urgent remedial measures, the Minister may
direct the holder of the relevant right, permit or permission to investigate, evaluate, assess
and report on the impact of any pollution or ecological degradation; take such measures
as may be specified in such directive; and complete such measures before a date specified
in the directive.134 If the holder fails to comply with the directive, the Minister may take
such measures as may be necessary to protect the health and well-being of any affected
person or to remedy ecological degradation and to stop pollution of the environment.135
Before the Minister implements any measure, he or she must afford the holder an oppor-
tunity to make representations to him or her.136 In order to implement such measures,
the Minister may by way of an ex parte application apply to a High Court for an order
to seize and sell such property of the holder as may be necessary to cover the expenses
of implementing such measures.137 In addition to such application, the Minister may use
funds appropriated for that purpose by Parliament to fully implement such measures.138
The Minister may recover an amount equal to the funds necessary to fully implement the
measures from the holder concerned.139
130
Section 43(6).
131
Section 44(1).
132
Section 44(2).
133
Section 98(a)(v).
134
Section 45(1).
135
Section 45(2)(a).
136
Section 45(2)(b).
137
Section 45(2)(c).
138
Section 45(2)(d).
139
Section 45(2)(e).

If the Minister directs that such remedial measures must be taken to prevent pollution
or ecological degradation of the environment or to rehabilitate dangerous occurrences but
establishes that the holder of the relevant right or permit, or his or her successor in title,
is deceased or cannot be traced or, in the case of a juristic person, has ceased to exist,
has been liquidated or cannot be traced, the Minister may instruct the Regional Manager
concerned to take the necessary measures to prevent further pollution or degradation,
or to make the area safe.140 Such must be funded from the financial provision made by
the holder, where appropriate, or if there is no such provision or if it is inadequate, from
money appropriated by Parliament for that purpose.141 Upon completion of such meas-
ures, the Regional Manager must apply to the registrar concerned that the title deed of the
land in question be endorsed to the effect that such land had been remedied.142
Various regulations regulating the environmental impact of mining were made under
the Mines and Works Act,143 which was repealed by the Minerals Act.144 In terms of the
Minerals Act, these regulations remained in force despite the repeal of the Act in terms
of which they were originally made. When the Minerals Act was repealed and replaced
by the Mineral and Petroleum Resources Development Act, there was no explicit savings
clause for these regulations. However, the Act does provide that any old order mining
right in force immediately before the Act took effect continues in force for a period not
exceeding five years from the date on which the Act took effect subject to the terms and
conditions under which it was granted or issued or was deemed to have been granted or
issued.145 This can be interpreted to mean that the regulations in question do continue to
apply to old order mining rights.146 These regulations would not, however, apply to new
mining operations.
Alternatively, in terms of the Mine Health and Safety Act,147 any health or safety stand-
ard which, immediately prior to the commencement of the Act, was incorporated under
the provisions of the Minerals Act or the regulations made under that Act is deemed to
be a health and safety standard. This requires distinguishing between those provisions
which would qualify as health and safety standards, which several environmental provi-
sions would, and those which would not. The status of these regulations, therefore, is
somewhat vague.
An interesting issue that arose in two cases decided in late 2009 and 2010 — Swart-
land Municipality v Louw NO148 and City of Cape Town v Maccsand (Pty) Ltd149
140
Section 46(1).
141
Section 46(2).
142
Section 46(3)(a). The registrar concerned must, on receipt of such application, make such endorsements as
he or she may deem necessary so as to give effect to provisions of that paragraph, and no office fee or other
charge is payable to the registrar in respect of such endorsement (s 46(3)(b)).
143
Act 27 of 1956.
144
Act 50 of 1991.
145
Schedule II s 7.
146
Defined as any mining lease, consent to mine, permission to mine, claim licence, mining authorisation or
right listed in Table 2 to Schedule II in force immediately before the date on which this Act took effect and
in respect of which mining operations are being conducted (Sch II s 1).
147
Act 29 of 1996.
148
2010 (5) SA 314 (WCC).
149
2010 (6) SA 63 (WCC).

respectively — was whether it was necessary for applicants for mining-related rights

in terms of the MPRDA to comply with town planning requirements in terms of the
Western Cape Land Use and Planning Ordinance (LUPO) and, in the second case, with
environmental requirements in NEMA. In both cases it was decided that LUPO was
applicable, both because of the constitutionally required local government powers relat-
ing to municipal planning and also because s 25(2) of the MPRDA provides that the
holder of a mining right must comply with the provisions of ‘any other relevant law and
the terms and conditions of the mining right’.150 Clearly the view of the Department of
Minerals was that the MPRDA ‘trumped’ the LUPO, but these decisions held that this
view is not correct. Unfortunately, anecdotal evidence suggests that this view is not con-
fined to the status of the MPRDA vis-à-vis LUPO but also the National Water Act, since
several mining operations have commenced without water use licences in terms of the
later Act, which would be necessary in almost all cases of mining, because most mining
would involve at least one example of ‘water use’ in terms of that Act.151 In the Maccsand
case, the court decided that NEMA was applicable and that its provisions had not been
‘incorporated’ into the MPRDA, as argued by the respondents.
As mentioned above, at the time of writing, there is some concern as to which authority
(mining or environment) ought to consider the environmental impacts of potential min-
ing. The concern, no doubt, arises from the fact that the mining authorities are there to
promote mining and requiring them to consider the environmental impacts of potential
mining operations amounts to the authority being both referee and player. This concern
is exacerbated by somewhat of a legislative impasse in respect of the applicable legal
regime.152
Under the ECA, environmental impact assessment (EIA) regulations did not apply to
mining-related activities, thus leaving the environmental impact of mining activities to
be assessed under the minerals legislation — first the Minerals Act and then the MPRDA.
In 2006, EIA regulations (and lists of activities for which the EIA regime would apply)
were published under NEMA. These lists contained reference to mining activities, but
the entry into force of the EIA regulations in respect of mining operations was delayed
until a future date to be proclaimed in due course.
Then, in 2008, an amendment to NEMA153 made several changes in respect of the
EIA regime for mining activities. These changes went hand in hand with the amendment
to the MPRDA.154 First, an earlier 2004 amendment to NEMA had inserted a section
relating to the designation of the competent authority for EIAs (ie the authority who
would decide the so-called environmental authorisations).155 This would ordinarily be
either the Minister of Environmental Affairs or the MEC in charge of the environment,
but s 24C(2A) provided that ‘the Minister of Minerals and Energy must be identified as
the competent authority … where the activity constitutes prospecting, mining, explora-
tion, production or a related activity occurring within a prospecting, mining, exploration
150
See also s 23(6) of the MPRDA.
151
See discussion of ‘water use’ above, 77.
152
See full discussion of these issues in Humby (n 110).
153
National Environmental Management Amendment Act 62 of 2008.
154
Mineral and Petroleum Resources Development Amendment Act 49 of 2008.
155
Section 24C.

or production area’. This subsection has been repealed by Act 62 of 2008. Moreover,
the latter Act has also amended s 43 of NEMA, which deals with appeals, to provide for
the Minister of Environmental Affairs to be the authority who decides appeals against
decisions to authorise mining decisions (by the Minister of Minerals). It is important to
note, however, that the amendment of any provision relating to mining-related activities
(including the repeal of s 24C(2A)) comes into effect only 18 months after the coming
into effect of s 2 of the Amendment Act (which amends s 24 of the principal Act) or the
MPRD Amendment Act, whichever comes later. At the time of writing, although the
NEM Amendment Act had come into force,156 the MPRD Amendment Act had not.
Finally, even if these amendments do come into effect — which will have the overall
effect of making the Minister of Minerals the authority for deciding on the environmental
authorisation of mining activities, but subject to the NEMA EIA regime and subject to
appeal to the Minister of Environmental Affairs — 18 months after these amendments
come into effect, NEMA will be amended further in such a way that the overall decision
in respect of environmental authorisation of mining-related activities will lie with the
Minister of Environmental Affairs.157 This means that the Minister of Minerals’ authority
over EIAs is intended to be temporary, with the authority over all environmental authori-
sations eventually to vest in the Minister of Environmental Affairs (and relevant MECs).
Apparently, the reason for this is lack of capacity (which is clearly regarded as merely
temporary) in the environmental departments. The already confusing situation is made
even more confusing by the apparent reluctance on the part of the Minister of Minerals
to proclaim the commencement of the MPRD Amendment Act, which will start the clock
ticking for all the amendments. In the meantime, the MPRDA is, in effect, unamended,
and the mining-related activities listed under NEMA appear only on paper — they are
not subject to the NEMA EIA regime. This is cause for concern, not only because it is a
referee and player situation, but also because, at the time of writing, there are concerns
about the ability of the Department of Minerals to manage its core responsibilities, let
alone the environmental authorisation aspects.158
4. Land use in the coastal zone

There are huge development pressures on South Africa’s coastal zone, ranging from
residential-recreational to mining. It is generally accepted that the coastal zone is ecologi-
cally sensitive and therefore ought to be subject to special land-use controls. The legisla-
tion regulating coastal zone management in South Africa is the National Environmental
Management: Integrated Coastal Management Act.159
156
On 1 May 2009.
157
Section 13 of Act 62 of 2008. For full details of the amendments that this section effects, see Humby (n 110)
at 30.
158
See, for example, Anon ‘Minister announces mineral rights audit’ (18 Aug 2010) Mail & Guardian online
at http://www.mg.co.za/article/2010-08–18-minister-announces-mineral-rights-audit (accessed 28 Febru-
ary 2011).
159
Act 24 of 2008. Discussion of this Act is based on my discussion of the Act in Juta’s Quarterly Review of
South African Law.

The objects of the Act (s 2) are:

‘(a) to determine the coastal zone of the Republic;
(b) to provide, within the framework of NEMA, for the co-ordinated and integrated
management of the coastal zone by all spheres of government in accordance with
the principles of co-operative governance;
(c) to preserve, protect, extend and enhance the status of coastal public property as
being held in trust by the State on behalf of all South Africans, including future
generations;
(d) to secure equitable access to the opportunities and benefits of coastal public prop-
erty; and
(e) to give effect to the Republic’s obligations in terms of international law regarding
coastal management and the marine environment.’
As is evident from these objects, one of the central concepts in the Act is that of ‘coastal
public property’ (CPP), which includes the following:160
●● ‘coastal waters;
●● land submerged by coastal waters, including land flooded by coastal waters which
subsequently becomes part of the bed of coastal waters, and the substrata beneath
such land;
●● any island, whether natural or artificial, within coastal waters, but excluding any
part of an island that was lawfully alienated before this Act commenced, or any
part of an artificially created island (other than the seashore of that island) that is
proclaimed by the Minister to be excluded from coastal public property;
●● the seashore, but excluding any portion of the seashore below the high-water mark
which was lawfully alienated before the Sea-Shore Act161 took effect or which was
lawfully alienated in terms of that Act and which has not subsequently been re-
incorporated into the seashore, and any portion of a coastal cliff that was lawfully
alienated before this Act took effect and is not owned by the State;
●● the seashore of a privately owned island within coastal waters;
●● any admiralty reserve owned by the State;
●● any state-owned land declared under section 8 to be coastal public property; or
●● any natural resources on or in any coastal public property, the exclusive economic
zone, or in or on the continental shelf, or any harbour, work or other installation on
or in any coastal public property that is owned by an organ of state.’
CPP may be extended by designating public land to be CPP162 or by purchasing private
land.163 The ownership of CPP vests in the citizens of the Republic and CPP must be held
in trust by the State on behalf of the citizens of the Republic,164 and every natural person
has the right of reasonable access to CPP.165 It is inalienable and cannot be sold, attached
160
Section 7.
161
Act 21 of 1935. This Act is discussed in the first edition of this book.
162
Section 8.
163
Section 9.
164
Section 11(1).
165
Section 13(1).

or acquired by prescription and rights over it cannot be acquired by prescription.166 This

differs from the position under the Sea-Shore Act where the President was the owner of
the seashore and it could be alienated by law.
The Act introduces the additional new concepts of the coastal protection zone; coastal
access land; coastal protected areas; special management areas and coastal set-back lines.
The coastal protection zone comprises:
●● ‘land set aside as a sensitive coastal area,167
●● any part of the littoral active zone that is not CPP;
●● any coastal protection area, or part of such area, which is not CPP;
●● any land unit situated wholly or partially within 1 km of the highwater mark which,
when this Act came into force, was zoned for agricultural or undetermined use, or
was not zoned and was not part of a lawfully established township, urban area or
other human settlement;
●● any land unit not mentioned above that is situated wholly or partially within 100
metres of the high-water mark;
●● any coastal wetland, lake, lagoon or dam which is situated wholly or partially
within a land unit referred to above;
●● any part of the seashore which is not CPP, including all privately owned land below
the high-water mark;
●● any admiralty reserve which is not coastal public property; or
●● any land that would be inundated by a 1:50 year flood or storm event.’168
The coastal protection zone is essentially established for enabling the use of land that
is adjacent to CPP or that plays a significant role in a coastal ecosystem to be managed,
regulated or restricted for purposes relating primarily to ecological protection.169
Each municipality whose area includes CPP must within 4 years of the Act’s com-
mencement, make a by-law that designates strips of land as coastal access land in order
to secure public access to CPP. This will be done by means of a public access servitude
in favour of the municipality.170 The process of designating coastal access land requires
consideration of the environmental impact and consultation with affected parties.171 Sec-
tion 20 sets out the municipality’s responsibilities in respect of coastal access land, which
include the signposting of that land, provision of appropriate facilities where possible (eg
toilets), and management of impacts on the environment. In many places, the provision of
coastal access land will undoubtedly affect private land. Factors to be taken into account
by municipalities in designating the access areas are set out in s 29, and they include the
‘importance’ of not restricting the rights of landowners unreasonably.
Section 22 deals with coastal protected areas, whereby a protected area which is not
CPP may be declared by the MEC not to be part of the coastal protection zone. A further
type of area is the special management area, declared as such by the Minister, only if
166
Section 11(2).
167
In terms of s 21 of the Environment Conservation Act 73 of 1989.
168
Section 16.
169
Section 17.
170
Section 18.
171
Section 19.

environmental, cultural or socio-economic conditions in that area require the introduc-

tion of measures which are necessary in order to more effectively attain the objectives
of any coastal management programme in the area; facilitate the management of coastal
resources by a local community; promote sustainable livelihoods for a local community;
or conserve, protect or enhance coastal ecosystems and biodiversity in the area.172 The
Minister may prescribe specified activities which are prohibited in special manage-
ment areas taking into account the purpose for which the special management area was
declared.173 The Minister may appoint a manager for a special management area.174
Coastal set-back lines must be established by an MEC in order to protect coastal public
property, private property and public safety; protect the coastal protection zone; preserve
the aesthetic values of the coastal zone; or for any other reason consistent with the objec-
tives of this Act. The MEC must also prohibit or restrict the building, erection, alteration or
extension of structures that are wholly or partially seaward of that coastal set-back line.175
Chapter 3 details the procedures and factors to be taken into account by the relevant
authorities in determining and adjusting coastal boundaries of the land types outlined
above, and there is provision for its recording in the relevant deeds register.
Estuaries are dealt with in Chapter 4 and this requires the establishment of a national
estuarine management protocol and estuarine management plans. The protocol must be
prescribed within 4 years by the Minister, in conjunction with the Minister of Water
Affairs.176 The protocol must:
‘(a) determine a strategic vision and objectives for achieving effective integrated
management of estuaries;
(b) set standards for the management of estuaries; establish procedures or give guid-
ance regarding how estuaries must be managed and how the management re-
sponsibilities are to be exercised by different organs of state and other parties;
(c) establish minimum requirements for estuarine management plans;
(d) identify who must prepare estuarine management plans and the process to be
followed in doing so; and
(e) specify the process for reviewing estuarine management plans to ensure that they
comply with the requirements of the Act.’177
The body responsible for developing an estuarine management plan must ensure that the
plan is consistent with the protocol and other relevant plans.178
The Act provides in Chapter 5 for various bodies: the National Coastal Committee
(responsible for the promotion of integrated coastal management and effective co-operative
governance by co-ordinating the effective implementation of the Act and of the national
coastal management programme); provincial lead agencies designated by the Premier in
172
Section 23.
173
Section 23(4).
174
Section 24.
175
Section 25.
176
Section 33(1).
177
Section 33(3).
178
Section 34.

each maritime province; Provincial Coastal Committees; and municipal coastal commit-
tees. This chapter also provides for the appointment of voluntary coastal officers.
Part of the functions of the bodies described above is to promote and implement coastal
management programmes, which are provided for at national,179 provincial180 and munici-
pal181 levels. Chapter 6 outlines the purpose and contents of these programmes and regu-
lates their co-ordination and alignment with each other and with other applicable plans
(such as Integrated Development Plans (IDPs)) and the national biodiversity framework).
Provision is also made for coastal planning schemes, which seem to be similar to town
planning schemes: they define areas within the coastal zone or coastal management area
which may be used exclusively or mainly for specified purposes or activities, or not be
used for specified purposes or activities; and prohibit or restrict activities or uses of areas
that do not comply with the rules of the scheme.182 These schemes will prevail over any
other municipal land use planning schemes in the event of conflict.183
Chapter 7 of the Act provides for the protection of the coastal environment, by pro-
viding for a suite of measures to be used for this purpose. The first such measure is
the imposition of a duty to avoid causing adverse effects on the coastal environment,
which adapts s 28 of NEMA for use in the coastal zone.184 Section 59 provides for coastal
protection notices and coastal access notices. If the Minister has reason to believe that
a person is carrying out, or intends to carry out, an activity that is having, or is likely to
have, an adverse effect on the coastal environment, he or she may issue a written coastal
protection notice to the person responsible for that activity, prohibiting the activity if it is
not already prohibited in terms of this Act, and instructing that person to take appropriate
steps in terms of this Act or any other applicable legislation to protect the environment; to
investigate and evaluate the impact of an activity on an aspect of the coastal environment
in accordance with Chapter 5 of NEMA; or to stop or postpone the activity for a reason-
able period to allow for the investigation to be carried out and for the Minister or MEC
to evaluate the report. The contents of the notice are set out in the section. If the Minister
has reason to believe that a person is carrying out, or intends to carry out, an activity
that is having, or is likely to have, an adverse effect on the rights of natural persons to
gain access to, use and enjoy CPP, the Minister may issue a written coastal access notice
to that person prohibiting the activity if it is not already prohibited in terms of this Act;
and instructing that person to take appropriate steps in terms of this Act or any other
applicable legislation to allow natural persons access to the CPP.185
The next type of measure is the repair and removal notice: the Minister or MEC may
issue a written repair or removal notice to any person responsible for a structure on or
within the coastal zone if that structure is having or is likely to have an adverse effect on
the coastal environment by virtue of its existence, because of its condition or because it
has been abandoned; or has been erected, constructed or upgraded in contravention of
179
Section 44.
180
Section 46.
181
Section 48.
182
Section 56.
183
Section 57.
184
Section 58.
185
Section 59(5).

this Act or any other law.186 Failure to comply with this or the protection or access notices
may result in the competent authority causing the required steps to be taken and recover-
ing the costs from the responsible person.187
An organ of state that is responsible for implementing national, provincial or municipal
legislation that regulates the planning or development of land must, in a manner that
conforms to the principles of co-operative governance contained in Chapter 3 of the
Constitution, apply that legislation in relation to land in the coastal protection zone in
a way that gives effect to the purposes for which the protection zone is established, and
may not authorise land within the coastal protection zone to be used for any activity
that may have an adverse effect on the coastal environment without first considering an
environmental impact assessment report.188
Environmental authorisations for coastal activities are also prescribed, the Act setting
out various factors that must be taken into account in respect of these authorisations
and prohibiting authorisations in certain circumstances, such as where the development
or activity is inconsistent with the purpose for which the particular land is designated
(such as CPP).189 The Act does allow for coastal leases and coastal concessions on CPP,
required for the occupation or construction of structures on land within the CPP.190
The Act repeals the Dumping at Sea Control Act,191 which requires replacement in
order to give effect to the 1996 Protocol to the London Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter 1972, which came into force
in 2006. The new Act’s provisions relating to pollution are discussed in the previous
chapter.
The remainder of the Act deals with procedural and technical issues such as appeals;
the power to make regulations; offences and penalties; delegations and the like. Other
than the Dumping at Sea Control Act, the new Act also repeals the Sea-shore Act.192
Clearly, this is an ambitious Act which, on paper, contains a suite of mechanisms that
have the potential to address degradation of the coastal zone, including inappropriate
development, of which we have seen much in recent years. Gibson has identified the
following problems with the Act:193
●● The difficulties in establishing the high-water mark, which is a defining feature of
several property components of the coastal zone, and may present problems in respect
of criminal prosecutions under the Act;
●● The complexity and technicality of the Act, making it difficult for many users to
understand;
●● Important omissions such as a statement of the goals and principles of integrated
coastal management and a funding mechanism to support the Act’s implementation;
186
Section 60.
187
Section 61.
188
Section 62.
189
Section 63.
190
Sections 65 and 66.
191
Act 73 of 1980. See above, 173.
192
Act 21 of 1935.
193
John Gibson ‘The development of integrated coastal management legislation in South Africa’ (2007) 18
Water Law 1.

●● The discretionary nature of many of the functions attributed to the Minister;

●● Lack of detail in several respects, for example the distribution of functions between
the different levels and branches of government.
The critical challenge identified by Gibson, with which I agree, is the ability of the rele-
vant authorities at different levels of government to implement the Act. However impres-
sive the Act appears to be on paper, one remains concerned that, as far as the implementa-
tion of the Act is concerned, it will not meet its promise.
5. Environmental impact assessment

Environmental impact assessments emerged internationally after the 1972 Stockholm
Conference and are now recognised internationally in, inter alia, the Rio Principles and
the 1991 Espoo Convention.194 Principle 17 of the Rio Convention states that ‘environ-
mental impact assessment, as a national instrument, shall be undertaken for proposed
activities that are likely to have a significant adverse impact on the environment and are
subject to a decision of a competent national authority’.
Nationally, too, environmental impact assessment has become an accepted environmen-
tal law norm. Before examining how it has developed in South Africa, let us consider what
exactly is meant by ‘environmental impact assessment’. The Rio Principle 17 gives a good
general idea. In the Espoo Convention, it is defined as ‘a national procedure for evaluation
of the likely impact of a proposed activity on the environment’.195 Sands provides more
detail in his definition of an environmental impact assessment (EIA) as describing:
a process which produces a written statement to be used to guide decision-making, with several
related functions. First, it should provide decision-makers with information on the environmen-
tal consequences of proposed activities and, in some cases, programmes and policies, and their
alternatives. Secondly, it requires decisions to be influenced by that information. And, thirdly,
it provides a mechanism for ensuring the participation of potentially affected persons in the
decision-making process.196
This quotation raises the idea that EIA does not focus only on projects but can also be
used to evaluate programmes and policies. This raises the idea of strategic environmental
assessment (SEA), which can be defined as ‘a process to ensure that significant envi-
ronmental effects arising from policies, plans and programmes are identified, assessed,
mitigated, communicated to decision-makers, monitored and that opportunities for pub-
lic involvement are provided’.197
It has been only relatively recently that South Africa has had a statutorily required EIA
regime (introduced in late 1997 by the Environment Conservation Act — ECA),198 but this
initial regime has now been replaced by the procedure required by the National Environ-
mental Management Act (NEMA).199 Because the vast majority of our EIA jurisprudence
194
See Philippe Sands Principles of International Environmental Law 2 ed (2003) at 799–800.
195
Art 1(vi).
196
Sands (n 194) at 800 (emphasis in original).
197
Strategic Environmental Assessment Information Service at http://www.sea-info.net/content/overview.
asp?pid=94 (accessed 9 May 2011).
198
Act 73 of 1989.
199
Act 107 of 1998, Chapter 5.

is based on the ECA requirements, it will be instructive to consider this before examin-
ing the new law. The regime under NEMA has also been amended — initial regulations
which appeared in 2006 have now been replaced by 2010 regulations, and there have been
several amendments of NEMA itself in so far as environmental authorisations (after EIA
processes) are concerned. Both the old and new NEMA situations are discussed here, as,
for some years hence, it is almost certain that there will be issues arising in respect of EIA
processes that commenced prior to the new legislation and amendments being applicable.
5.1 EIA under the Environment Conservation Act 73 of 1989

The ECA provided for the Minister of Environmental Affairs and Tourism 200 to identify
those activities which in his or her opinion may have a substantial detrimental effect on
the environment, whether in general or in respect of certain areas.201 An ‘identified activ-
ity’ may not be undertaken without authorisation from the relevant competent authority,202
in most cases the Member of the Executive Council (MEC) in the province concerned,
but where the activity in question is of national importance or its impact is likely to be
felt in more than one province, the Minister is the competent authority. Authorisation
may only be made after consideration of ‘reports concerning the impact of the proposed
activity and of alternative proposed activities on the environment’.203 The Minister was
also empowered to make regulations relating to environmental impact reports, including
the scope and content of the reports and the relevant procedure to be followed.204
In 1997, the Minister promulgated a list of identified activities and ‘general EIA
regulations’ setting out the procedure to be followed by developers seeking authorisation
for their activities. The list of identified activities, which was amended several times,
included:
‘(a) the ‘construction, erection or upgrading’ of a variety of items, including nuclear reactors,
roads and railways, dams and ‘public and private resorts and associated infrastructure’;
(b) changes of land use;
(c) the concentration of livestock, aquatic organisms, poultry and game in a confined struc-
ture for the purpose of commercial production;
(d) the intensive husbandry of, or importation of, any plant or animal that has been declared
a weed or an invasive alien species;
(e) the release of any organism outside its natural area of distribution that is to be used for
biological pest control;
(f) the genetic modification of any organism with the purpose of fundamentally changing the
inherent characteristics of that organism;
(g) the reclamation of land from the sea and inland waters;
(h) waste disposal sites (requiring authorisation under s 20 of the Act as well);
(i) scheduled processes in terms of the Atmospheric Pollution Prevention Act;205 and
(j) the cultivation or any other use of virgin ground (land that has not been cultivated during
the previous ten years).’206
200
Hereinafter referred to as ‘the Minister’.
201
Section 21.
202
Section 22(1).
203
Section 22(2).
204
Section 26.
205
Act 45 of 1965.
206
GN R1182 in GG 18261 of 5 September 1997, as amended.

The Minister also identified certain geographical areas where identified activities may
not take place without authorisation,207 but these constituted a minute portion of the total
sensitive areas in South Africa which would benefit from such measures.
The general EIA regulations, which accompanied the list of identified activities, set
out the process to be followed by the applicant or developer.208 In short, this required the
applicant to hire an independent consultant to carry out the procedure, which entailed
the submission of a plan of study for scoping including a description of the activity to be
undertaken; the tasks to be performed during scoping and the method by which environ-
mental issues and alternatives will be identified, followed by a scoping report. The scop-
ing report must contain: a brief project description; a brief description of environmental
issues identified; a description of all alternatives identified; and an appendix containing
a description of the public participation process followed, including a list of interested
parties and their comments.
On receipt of the scoping report, the authority may decide the matter on the basis of
the information supplied in the scoping report, or decide that such information must be
supplemented by an EIA focusing on the identified alternatives and environmental issues.
A plan of study for the EIA must be carried out, followed by the environmental impact
report, which must contain: a description of each alternative, including the particulars on
the extent and significance of each identified environmental impact and the possibility
for mitigation of each identified impact; a comparative assessment of all the alternatives;
and appendices containing descriptions of the environment concerned; the activity to
be undertaken; the public participation process followed, including a list of interested
parties and their comments; any media coverage given to the proposed activity; and any
other information included in the accepted plan of study.
The relevant authority may then decide to authorise the activity with or without condi-
tions, or to reject the application, and this decision, together with certain other prescribed
information, must be provided in a record of decision (ROD). The decision may be taken
on appeal to the Minister or provincial authority within 30 days from the date of issue of
the ROD. This was the only time limit provided for in the regulations.
There were several cases relating to these regulations. Silvermine Valley Coalition v
Sybrand van der Spuy Boerderye209 was significant for two reasons: first, it illustrated the
difficulties that can arise where the identification of activities in the legislation is not clear
enough in order to ascertain whether a particular activity is one which requires authorisa-
tion or not. The second aspect was the timing of the EIA: in Silvermine, the applicants
were seeking an EIA after the activity (planting of a vineyard) had largely been carried
out already (without authorisation). The court held that it was inappropriate for an EIA to
be carried out after the event since it was a device to be used in order to ascertain likely
impacts before the activity commenced.
Eagles Landing Body Corporate v Molewa NO210 was decided shortly afterwards and
somewhat differently. The court decided that it was competent for an EIA to be requested
207
The Outeniqua sensitive coastal area and the Pennington/Umtamvuna sensitive coastal area: provided for
in GNs R1526–R1528 and GNs R1529–R1531, respectively, in GG 19493 of 27 November 1998.
208
GN R1183 in GG 18261 of 5 September 1997, as amended.
209
2002 (1) SA 478 (C).
210
2003 (1) SA 412 (T).

after commencement of the activity but before construction had been completed. Both
these cases are worthy of comment but this is relatively academic now, since NEMA
addresses the issue of what remedies are available for an activity that commences without
authorisation, discussed below.211
Several other decisions also considered the EIA regime under the ECA, but together
with NEMA considerations, and these cases are considered below.
The regulations in terms of the ECA had been in effect for little over a year when
NEMA was enacted, to come into effect on 1 January 1999. Chapter 5 of NEMA is
headed ‘Integrated Environmental Management’ (IEM), and sets out the general objec-
tives of IEM and provides for implementation in s 24. This section originally provided
that the potential impact on the environment; socio-economic conditions; and the cul-
tural heritage, of activities that require authorisation or permission by law and which
may significantly affect the environment, must be considered, investigated and assessed
prior to their implementation and reported to the organ of state charged by law with
authorising, permitting, or otherwise allowing the implementation of an activity.212 This
basic approach may be supplemented by listing specific activities and geographic areas
within which activities require authorisation. The section also provides for the making
of regulations relating to procedure, etc, and provides for certain minimum requirements
to be observed in the procedures for investigation, assessment and communication of the
potential impact of activities.213
NEMA, which repeals most of the ECA, repeals ss 21, 22 and 26 of that Act and all
regulations thereunder regulating environmental authorisation and EIAs, but this repeal
was to take effect only upon a date to be published by the Minister after regulations under
s 24 of NEMA had been promulgated and the Minister was satisfied that the legislation to
be repealed ‘has become redundant’.214 Although NEMA came into effect in 1999, it was
only in 2006 that the EIA regulations under NEMA were promulgated and the repeal of
the relevant sections and regulations of the ECA took effect.215 During the period 1999
to 2006, the ECA regime operated parallel (at least to a degree) with the NEMA provi-
sions in Chapter 5. Although NEMA had not been fleshed out by regulations, the general
principles were still applicable. It appeared that the authorities were using the ECA for
‘identified activities’ (as they were required to do) and were applying s 24 of NEMA to
those activities which may significantly affect the environment which were not identified
activities in terms of the ECA.
211
See, for further comment, Michael Kidd ‘EIA and the four Ps’ in Nathalie Chalifour, Patricia Kameri-
Mbote, Lin Heng Lye, John Nolon Land Use Law for Sustainable Development (2007) 181.
212
Section 24(1).
213
Section 24(7).
214
Section 50(2).
215
GN R615 in GG 28938 of 23 June 2006 repeals GNs R1182 and R1184 and GN R616 (same Gazette) repeals
GN R1183.

5.2 Chapter 5 (Integrated Environmental Management) of NEMA

Before the promulgation of the NEMA regulations, NEMA was amended changing some
central aspects of its treatment of environmental authorisations.216 Section 24, which
was initially headed ‘Implementation’, was substantially overhauled, and is now headed
‘Environmental authorisations’. The main result of the amendment is to narrow the scope
of activities that require authorisations. Initially, the Act provided in s 24(1) that
‘the potential impact on—
(a) the environment;
(b) socio-economic conditions; and
(c) the cultural heritage,
of activities that require authorisation or permission by law and which may signifi-
cantly affect the environment, must be considered, investigated and assessed prior to
their implementation and reported to the organ of state charged by law with authoris-
ing, permitting, or otherwise allowing the implementation of an activity.’
Clearly, this section applied to any activity that required authorisation under any law
(if it may significantly affect the environment), so the scope of application of s 24 was
rather wide. The section has now been amended to exclude impacts on socio-economic
conditions and the cultural heritage, and is now applicable only to listed (and specified)217
activities. The authorisation process, therefore, will be similar to the process provided
for by the Environment Conservation Act, where it was only identified activities that
required authorisation. Because the environmental authorisation process is probably the
most frequently encountered aspect of South African law in practice, it will be useful to
consider the provisons in Chapter 5 of the Act in detail, commencing with s 24.
In s 24(1), NEMA provides that, in order to give effect to the general objectives of
integrated environmental management, the potential consequences for or impacts on the
environment of listed activities or specified activities must be considered, investigated,
assessed and reported on to the competent authority or the Minister of Minerals and
Energy, as the case may be, except in respect of those activities that may commence
without having to obtain an environmental authorisation in terms of this Act.218 Every
applicant for environmental authorisation must comply with the requirements prescribed
in terms of NEMA in relation to:
‘(a) steps to be taken before submitting an application, where applicable;
(b) any prescribed report;
(c) any procedure relating to public consultation and information gathering;
(d) any environmental management programme;
(e) the submission of an application for an environmental authorisation and any other
relevant information; and
216
National Environmental Management Amendment Act 8 of 2004.
217
A specified activity is an activity as specified within a listed geographical area in terms of s 24(2)(b) and
(c) (s 1).
218
See discussion above, 228–9, in respect of authorisation of mining activities and the role of the Minister of
Minerals.

(f) the undertaking of any specialist report, where applicable.’219

Section 24(2) provides for identification of activities as follows:
‘(a) activities which may not commence without environmental authorisation from
the competent authority;
(b) geographical areas based on environmental attributes, and as specified in spa-
tial development tools adopted in the prescribed manner by the environmental
authority, in which specified activities may not commence without environmental
authorisation from the competent authority;
(c) geographical areas based on environmental attributes, and specified in spa-
tial development tools adopted in the prescribed manner by the environmental
authority, in which specified activities may be excluded from authorisation by the
competent authority;
(d) activities contemplated in paragraphs (a) and (b) that may commence without
an environmental authorisation, but that must comply with prescribed norms or
standards.’220
The Minister or MEC is empowered to compile information and maps that specify the
attributes of the environment in particular geographical areas, including the sensitivity,
extent, interrelationship and significance of such attributes which must be taken into
account by every competent authority.221 A very important subsection is s 24(4) because
it provides for mandatory requirements for the assessment process. It provides that proce-
dures for the investigation, assessment and communication of the potential consequences
or impacts of activities on the environment:
‘(a) must ensure, with respect to every application for an environmental authorisa-
tion—
(i) coordination and cooperation between organs of state in the consideration
of assessments where an activity falls under the jurisdiction of more than
one organ of state;
(ii) that the findings and recommendations flowing from an investigation, the
general objectives of integrated environmental management laid down in
this Act and the principles of environmental management set out in section
2 are taken into account in any decision made by an organ of state in relation
to any proposed policy, programme, process, plan or project;
(iii) that a description of the environment likely to be significantly affected by
the proposed activity is contained in such application;
(iv) investigation of the potential consequences for or impacts on the environ-
ment of the activity and assessment of the significance of those potential
consequences or impacts; and
219
Section 24(1A).
220
Subject to the proviso that where an activity falls under the jurisdiction of another Minister or MEC, a
decision in respect of paragraphs (a) to (d) must be taken after consultation with such other Minister or
MEC. Note that s 24(2) has been amended twice: in 2004 and 2008.
221
Section 24(3).

(v) public information and participation procedures which provide all inter-
ested and affected parties, including all organs of state in all spheres of
government that may have jurisdiction over any aspect of the activity, with a
reasonable opportunity to participate in those information and participation
procedures; and
(b) must include, with respect to every application for an environmental authorisa-
tion and where applicable—
(i) investigation of the potential consequences or impacts of the alternatives to
the activity on the environment and assessment of the significance of those
potential consequences or impacts, including the option of not implement-
ing the activity;
(ii) investigation of mitigation measures to keep adverse consequences or
impacts to a minimum;
(iii) investigation, assessment and evaluation of the impact of any proposed
listed or specified activity on any national estate referred to in section 3(2)
of the National Heritage Resources Act,222 excluding the national estate con-
templated in section 3(2)(i)(vi) and (vii) of that Act;
(iv) reporting on gaps in knowledge, the adequacy of predictive methods and
underlying assumptions, and uncertainties encountered in compiling the
required information;
(v) investigation and formulation of arrangements for the monitoring and man-
agement of consequences for or impacts on the environment, and the assess-
ment of the effectiveness of such arrangements after their implementation;
(vi) consideration of environmental attributes identified in the compilation of
information and maps contemplated in subsection (3); and
(vii) provision for the adherence to requirements that are prescribed in a specific
environmental management Act relevant to the listed or specified activity in
question.’223
The regulatory power in respect of EIAs is set out in s 24(5). Although the provision is
couched in directory language, it is clearly necessary for regulations to be enacted in
order to provide for the EIA procedure. The Minister or MEC224 may make regulations
consistent with the mandatory requirements required by s 24(4):
222
Act 25 of 1999.
223
Where environmental impact assessment has been identified as the environmental instrument to be uti-
lised in informing an application for environmental authorisation, sub-s (4)(b) is applicable: s 24(4A).
This refers to the distinction between basic assessment and environmental impact assessment — see
below, 248.
224
With the concurrence of the Minister, and an MEC may make regulations only in respect of listed activities and
specified activities or areas in respect of which the MEC is the competent authority: s 24(6). In terms of s 24(9),
Only the Minister may make regulations in accordance with subsection (5) stipulating the procedure
to be followed and the report to be prepared in investigating, assessing and communicating potential
consequences for or impacts on the environment by activities, where the activity—
(a) has a development footprint that falls within the boundaries of more than one province or traverses
international boundaries; or
(b) will affect compliance with obligations resting on the Republic under customary international law
or a convention.’

‘(a) laying down the procedure to be followed in applying for, the issuing of, and
monitoring compliance with, environmental authorisations;
(b) laying down the procedure to be followed in respect of—
(i) the efficient administration and processing of environmental authorisations;
(ii) fair decision-making and conflict management in the consideration and pro-
cessing of applications for environmental authorisations;
(iv) applications to the competent authority by any person to be exempted from
the provisions of any regulation in respect of a specific activity;
(v) appeals against decisions of competent authorities;
(vi) the management and control of residue stock piles and deposits on a pros-
pecting, mining, exploration and production area;
(vii) consultation with land owners, lawful occupiers and other interested or
affected parties;
(viii) mine closure requirements and procedures, the apportionment of liability
for mine closure and the sustainable closure of mines with an intercon-
nected or integrated impact resulting in a cumulative impact;
(ix) financial provision; and
(x) monitoring and environmental management programme performance
assessments;
(bA) laying down the procedure to be followed for the preparation, evaluation and
adoption of prescribed environmental management instruments, including—
(i) environmental management frameworks;
(ii) strategic environmental assessments;
(iii) environmental impact assessments;
(iv) environmental management programmes;
(v) environmental risk assessments;
(vi) environmental feasibility assessments;
(vii) norms or standards;
(viii) spatial development tools; or
(ix) any other relevant environmental management instrument that may be
developed in time;
(c) prescribing fees, after consultation with the Minister of Finance, to be paid for—
(i) the consideration and processing of applications for environmental authori-
sations; and
(ii) the review of documents, processes and procedures by specialists on behalf
of the competent authority;
(d) requiring, after consultation with the Minister of Finance, the provision of finan-
cial or other security to cover the risks to the State and the environment of non-
compliance with conditions attached to environmental authorisations;
(e) specifying that specified tasks performed in connection with an application for an
environmental authorisation may only be performed by an environmental assess-
ment practitioner registered in accordance with the prescribed procedures;
(f) requiring that competent authorities maintain a registry of applications for, and
records of decisions in respect of, environmental authorisations;
(g) specifying that a contravention of a specified regulation is an offence and pre-
scribing penalties for the contravention of that regulation;

(h) prescribing minimum criteria for the report content for each type of report and for
each process that is contemplated in terms of the regulations in order to ensure a
consistent quality and to facilitate efficient evaluation of reports;
(i) prescribing review mechanisms and procedures including criteria for, and respon-
sibilities of all parties in, the review process; and
(j) prescribing any other matter necessary for dealing with and evaluating applica-
tions for environmental authorisations.’
Importantly, given that several listed activities are also regulated in terms of other legis-
lation, compliance with the procedures laid down by the Minister or an MEC in terms of
sub-s (4)225 does not absolve a person from complying with any other statutory require-
ment to obtain authorisation from any organ of state charged by law with authorising,
permitting or otherwise allowing the implementation of the activity in question.226 Simi-
larly, authorisations obtained under any other law for an activity listed or specified in
terms of this Act do not absolve the applicant from obtaining authorisation under this
Act unless an authorisation has been granted in the manner contemplated in s 24L,227 and
authorisations obtained after any investigation, assessment and communication of the
potential impacts or consequences of activities, including an exemption granted in terms
of s 24M or permits obtained under any law for a listed activity or specified activity in
terms of this Act, may be considered by the competent authority as sufficient for the pur-
poses of s 24(4), provided that such investigation, assessment and communication comply
with the requirements of that section.228
Finally, as regards s 24, a new insertion 229 empowers the Minister or MEC to:
‘(i) develop or adopt norms or standards for activities, or for any part of an activity or
for a combination of activities, contemplated in terms of subsection (2)(d);
(ii) prescribe the use of the developed or adopted norms or standards in order to meet
the requirements of this Act;
(iii) prescribe reporting and monitoring requirements; and
(iv) prescribe procedures and criteria to be used by the competent authority for the
monitoring of such activities in order to determine compliance with the pre-
scribed norms or standards.’230
Such norms or standards must provide for rules, guidelines or characteristics that may
commonly and repeatedly be used; and against which the performance of activities or the
results of those activities may be measured for the purposes of achieving the objects of
this Act.231 The process of developing norms or standards must, as a minimum, include
publication for comment, in the relevant Gazette, of the draft norms or standards; con-
sideration of comments received; and publication of the norms or standards to be pre-
225
Sic. The Act refers to sub-s (4), but this must mean sub-s (5).
226
Section 24(7).
227
Section 24(8)(a).
228
Section 24(8)(b).
229
By Act 62 of 2008.
230
Section 24(10)(a).
231
Section 24(10)(b).

scribed.232 The process of adopting norms and standards, on the other hand, must, as a
minimum, include publication for comment, in the relevant Gazette, of the intention to
adopt existing norms or standards in order to meet the requirements of this Act; consider-
ation of comments received; and publication of the norms or standards to be prescribed.233
Whereas the original NEMA contained only two sections (23 and 24) in Chapter 5, the
subsequent Amendment Acts inserted several new sections into Chapter 5 to flesh out the
authorisation process, although there is still a need for regulations to, first, identify the
listed activities and, secondly, provide for the authorisation procedures.
Sections 24A and 24B deal with the procedure for listing and delisting activities and
areas respectively. Section 24C sets out the procedure for identifying the competent
authority, which must be done at the same time as the listing of activities. There are
certain activities (eg an activity that has implications for the national environmental
policy or international commitments or relations) for which only the Minister may be
the competent authority. Listed activities and designated competent authorities must be
published in the Gazette.234
Seemingly recognising that enforcement of conditions imposed on current authorisa-
tions is problematic, the Act requires in s 24E that every environmental authorisation
must as a minimum ensure that adequate provision is made for the ongoing management
and monitoring of the impacts of the activity on the environment throughout the life cycle
of the activity; the property, site or area is specified; and provision is made for the transfer
of rights and obligations when there is a change of ownership in the property. How this
last objective is to be met is not clear.
Another problem with the system has been that persons who commence identified
activities without the necessary authorisation present problems to the authorities in deal-
ing with the unauthorised development. Although commencing unauthorised activities
was a criminal offence in terms of the ECA, there were no other remedies directly appli-
cable to this situation and authorities had to make use of methods such as s 28 of NEMA,
which are not ideally suited to the problem. Amendments to NEMA addressed this prob-
lem by providing enforcement methods that are far from toothless. First, in s 24F, com-
mencement or continuation of an unauthorised activity is a criminal offence. It is also
an offence under s 24F to fail to comply with or to contravene the conditions applicable
to any environmental authorisation granted for a listed activity or specified activity; any
condition applicable to an exemption granted in terms of s 24M; or an approved environ-
mental management programme. The maximum penalty for contravention of this section
is a R5 million fine or ten years’ imprisonment or both.
An important question to be asked for the purpose of s 24F (and s 24G, discussed
below) is when the activity is said to have ‘commenced’. NEMA now defines ‘com-
mence’ as ‘when used in Chapter 5, means the start of any physical activity, including
site preparation and any activity on the site in furtherance of a listed activity or specified
activity, but does not include any activity required for the purpose of an investigation or
feasibility study as long as such investigation or feasibility study does not constitute a
listed activity or specified activity’. This definition was relevant to the decision in Joint
232
Section 24(10)(c).
233
Section 24(10)(d).
234
Section 24D.

Owners, Erf 5216 Hartenbos v Minister for Local Government, Environmental Affairs
and Development Planning, Western Cape,235 where the court held that, for an activity
to have commenced, there must be a reasonably direct connection between the activity
carried out and the activity requiring authorisation.236 ‘Activity’ in this sense means the
activity listed under the Act, and refers to individual activities, not a development as
a whole. While this decision was made in a different context, it is submitted that this
reasoning would be applicable to the matter in the context of s 24F and G as well.
Section 24F is augmented by s 24G, which provides for a rather odd procedure whereby
the offender (in terms of s 24F) makes an application to the Minister/MEC, who may
direct the applicant to:
‘(a) compile a report containing—
(i) an assessment of the nature, extent, duration and significance of the con-
sequences for or impacts on the environment of the activity, including the
cumulative effects;
(ii) a description of mitigation measures undertaken or to be undertaken in
respect of the consequences for or impacts on the environment of the activ-
ity;
(iii) a description of the public participation process followed during the course
of compiling the report, including all comments received from interested
and affected parties and an indication of how issues raised have been
addressed;
(iv) an environmental management programme; and
(b) provide such other information or undertake such further studies as the Minister
or MEC, as the case may be, may deem necessary.’237
The Minister/MEC considers the report submitted, but only upon payment by the person
concerned of an ‘administration fine’ not exceeding R1 million (this is in addition to the
fine provided for in s 24F, which is a penalty imposed by a court).238 There are guidelines
that provide for assessment of the administration fine. This is a relatively novel concept
in South African law, although administrative penalties are used in competition law.239
Administrative penalties are used in other jurisdictions, but what is remarkable about this
provision is that administrative penalties in other countries are usually used for relatively
low-level offences and the maximum penalty imposed is usually nowhere near as large as
that provided for in this section.
Upon consideration of the report, the Minister/MEC may direct the person to cease
the activity, either wholly or in part, and to rehabilitate the environment within such time
and subject to such conditions as the Minister or MEC may deem necessary; or issue an
environmental authorisation to such person subject to such conditions as the Minister or
235
2011 (1) SA 128 (WCC).
236
Ibid at para [41].
237
Section 24G(1).
238
Section 24G(2A).
239
See Melissa Fourie ‘How civil and administrative penalties can change the face of environmental compli-
ance in South Africa’ (2009) 16 SAJELP 93.

MEC may deem necessary.240 Failure to comply with such a directive, or with a condition
attached to an authorisation under this section, is an offence attracting the same penalties
as in s 24F.241 This is a significant power but it is welcome as there has been seemingly
widespread non-compliance with the requirement to obtain authorisations where required
by NEMA, and the previous remedies (when there were any) were clearly not perceived as
being a deterrent.
The qualification of environmental assessment practitioners (EAPs) is another problem
that has been identified and such practitioners have for some time been grappling with
how to accredit EAPs. Section 24H goes some way towards addressing this problem in
that it provides for an association proposing to register its members as EAPs to apply to
the Minister to be appointed as a registration authority, and sets out information which
must appear in the application. It is significant that the Act does not provide for criteria
for registration of individual EAPs but rather for a kind of self-regulation model whereby
certain bodies will be able to accredit their own members. The appointment as a registra-
tion authority may be terminated with good cause.
The final new section introduced by the 2004 amendment to the Act is s 24I, which
provides for the appointment of external specialist reviewers where the competent author-
ity does not have the requisite technical authority and/or where high levels of objectivity
are required.
Sections 24J to 24R were introduced by Act 62 of 2008. Section 24J provides that
the Minister or an MEC may publish guidelines regarding listed activities or specified
activities; or the implementation, administration and institutional arrangements of EIA
regulations made in terms of s 24(5).
Section 24K deals with consultation between competent authorities and the considera-
tion of legislative compliance requirements of other organs of state having jurisdiction
in order to ‘streamline’ the bureaucratic processes for those involved. Similarly, s 24L
provides for the alignment of environmental authorisations and allows for the possibility
of what could be called ‘one stop shop’ authorisations. While these insertions are most
welcome, s 24M is cause for concern, providing for exemptions from the application of
‘certain provisions’. The Minister or MEC may grant an exemption from any provision
of the Act (not just Chapter 5 of the Act), except from a provision of s 24(4)(a), which
contains what could be called (some of) the mandatory requirements of an EIA applica-
tion. As pointed out above, there are other ‘mandatory requirements’ in s 24(4)(b), for
which the Minister of Minerals may grant an exemption. These include factors such as
the investigation of potential consequences or impacts of the alternatives to the activity;
investigation of mitigation measures and investigation and formulation of arrangements
for the monitoring and management of consequences for or impacts on the environment;
and the assessment of the effectiveness of such arrangements after their implementation.
Section 24M(4) provides that the power to grant an exemption may only be exercised
where it is unlikely to result in significant detrimental consequences for or impacts on the
environment; the provision cannot be implemented in practice in the case of the applica-
tion in question; or (not ‘and’) the exemption is unlikely to adversely affect the rights of
interested or affected parties. Although there are parameters for the use of the exemption
240
Section 24G(2).
241
Section 24G(3).

power, this power should be accompanied by clearer guidelines on when the power may
be appropriately used.
Section 24N provides for environmental management programmes (EMP). The
competent authority may insist on the submission of an environmental management pro-
gramme before considering an application for an environmental authorisation. An EMP
must be submitted before the consideration of the environmental authorisation in cases
where an EIA (as opposed to a basic assessment) has been identified as the environmental
instrument to be utilised as the basis of the authorisation, and for applications relating to
mining-related activities. The contents of the EMP are prescribed as well,242 and the duty
to comply with the EMP is stipulated. Section 24N also includes the requirement that
a holder (of mineral rights) and any person issued with an environmental authorisation
must, as far as is reasonably practicable, rehabilitate the environment affected by the
prospecting or mining operations to its natural or predetermined state or to a land use
which conforms to the generally accepted principle of sustainable development and he
or she is ‘responsible for’ any environmental damage, pollution, pumping and treatment
of extraneous water or ecological degradation as a result of his or her prospecting or
mining operations or related mining activities which may occur inside and outside the
boundaries of the prospecting or mining area to which such right or permit relates.243
Wide unguided discretion conferred on administrators is now frowned upon, and
s 24O addresses this by providing for the criteria to be taken into account by the compe-
tent authority in deciding on an environmental authorisation. The official must comply
with the Act (ie NEMA) and take into account ‘all relevant factors’, a non-exhaustive list
which is provided by the section. The section also contains provision for consultation
with other affected organs of state. The list of factors that must be taken into account by
the competent authority are:
‘(i) any pollution, environmental impacts or environmental degradation likely to be
caused if the application is approved or refused;
(ii) measures that may be taken—
(aa) to protect the environment from harm as a result of the activity which is the
subject of the application; and
(bb) to prevent, control, abate or mitigate any pollution, substantially detrimental
environmental impacts or environmental degradation;
(iii) the ability of the applicant to implement mitigation measures and to comply with
any conditions subject to which the application may be granted;
(iv) where appropriate, any feasible and reasonable alternatives to the activity which
is the subject of the application and any feasible and reasonable modifications or
changes to the activity that may minimise harm to the environment;
(v) any information and maps compiled in terms of section 24 (3), including any pre-
scribed environmental management frameworks, to the extent that such informa-
tion, maps and frameworks are relevant to the application;
(vi) information contained in the application form, reports, comments, representa-
tions and other documents submitted in terms of this Act to the Minister, Minis-
242
Section 24N(2).
243
Section 24N(7)(e).

ter of Minerals and Energy, MEC or competent authority in connection with the
application;
(vii) any comments received from organs of state that have jurisdiction over any aspect
of the activity which is the subject of the application; and
(viii) any guidelines, departmental policies and decision making instruments that
have been developed or any other information in the possession of the competent
authority that are relevant to the application.’
Section 24P provides for financial provision for remediation of environmental damage
(the amount of which will be prescribed), which is a prerequisite for the granting of an
environmental authorisation for mining-related activities. This will be used as security
for rehabilitation work to be carried out in the event that the rights holder fails to rehabili-
tate satisfactorily, as is currently provided for in the MPRDA. Monitoring and assessment
as a requirement of an EMP for mining-related activities is required by s 24Q and s 24R
sets out the responsibilities of rights holders in respect of mine closure and the conse-
quences flowing therefrom.
The 2006 EIA regulations and lists of activities

After the release of several drafts, which were not universally well received, the long-
awaited environmental impact assessment regulations in terms of Chapter 5 of NEMA
finally appeared in April 2006. There are three government notices:244 the regulations
relating to the process to be followed;245 the list of activities and competent authorities in
respect of which a so-called ‘basic assessment’ will be required;246 and those activities and
competent authorities relating to those activities requiring scoping and EIA.247
One of the main objectives behind the regulations is the expedition of the authorisation
process by reducing the time taken (by the introduction of compulsory time frames) and
excluding certain types of activities (those falling below certain thresholds) from the
authorisation process. While the process may be simplified, the regulations are consider-
ably bulkier than the previous ones, with the probable result that the process will, in
several respects, become more complex.
The regulations deal with the powers and responsibilities of competent authorities, and
the requirements of environmental assessment practitioners (who are still required to be
independent). The basic assessment involves an assessment of the potential impacts of
the activity on the environment; whether and the extent to which those impacts can be
mitigated; and whether there are any significant issues and impacts that require further
investigation.248 Acknowledgment of receipt of an application must be made within 30
244
All in GG 28753 of 21 April 2006.
245
GN R385, which commenced on 3 July 2006, according to GN R612 in GG 28938 of 23 June 2006.
246
GN R386, which was amended by GN R613 (GG 28938 of 23 June 2006) to provide that the list comes
into effect on the date on which the regulations in GN R385 come into effect (ie 3 July 2006), except for
items 8 and 9, which will come into effect at a date to be published in a separate notice. Items 8 and 9 are
reconnaissance, prospecting, mining or retention operations (8) and the undertaking of any prospecting or
mining related activity or operation (9).
247
GN R387, which commences on the same date as above, except for items 7 and 8: reconnaissance, explora-
tion, production and mining (7) and the undertaking of any reconnaissance, exploration, production or
mining-related activity or operation (8).
248
Reg 22.

days and the decision on the basic assessment within 30 days after such acknowledgment.
The types of activities for which basic assessment is required are, for the most part,
identified on the basis of whether they fall within certain specified parameters, or below
certain thresholds. For example, one listed activity is the construction of facilities and
infrastructure, including associated structures or infrastructure, for the storage of 250
tons or more but less than 100 000 tons of coal. Examples of other activities are:
●● The removal or damaging of indigenous vegetation of more than 10 square metres
within a distance of 100 metres inland of the high-water mark of the sea;
●● The establishment of cemeteries;
●● The subdivision of portions of land 9 hectares or larger into portions of 5 hectares or
less; and
●● The release of GMOs into the environment where assessment is required by the GMO
Act or Biodiversity Act.
Those activities falling in the other category249 require scoping and EIA.250 A decision on
an EIA must be made within 105 days. Activities for which this process is required are
significantly fewer than in the basic assessment list and include:
●● The construction of facilities and infrastructure, including associated structures or
infrastructure, for various activities including nuclear reaction;
●● Any development activity, including associated structures or infrastructure, where
the total area of the developed area is, or is intended to be, 20 hectares or more;
●● Construction of filling stations;
●● Reconnaissance, exploration, production and mining in terms of the Mineral and
Petroleum Resources Development Act 28 of 2002; and
●● Any process or activity identified in terms of s 53(1) of the Biodiversity Act (these are
threatening processes in listed ecosystems).
The regulations no longer refer to ‘records of decision’ but rather to environmental
authorisations, and there is comprehensive treatment of issues such as amendment, with-
drawal and suspension of such authorisations, as well as provision for exemptions. The
public participation process, an inherent aspect of the environmental authorisation pro-
cess, is also regulated in far more detail than before. As far as the issue of appeals is
concerned, the regulations persist in providing that the Minister or MEC have the deci-
sion-making authority. There is provision for an appeal panel but its powers appear to
be confined to making recommendations to the Minister or MEC. Another noteworthy
aspect of the regulations is provision for compliance monitoring.
249
GN R387.
250
Reg 27.

The 2010 regulations and lists of activities251

The publication of new EIA regulations252 was accompanied by the publication of three
lists of activities for which EIA is required (together with the repeal of the old ones).253
Also in the same Gazette appeared Environmental Management Framework Regula-
tions.254 The EIA regulations and listing notices 1 and 2 were amended in July with effect
from 2 August 2010,255 and on the same date the date of commencement of the three list-
ing notices was proclaimed to be 2 August 2010.256 The EIA regulations came into effect
on the same date,257 as did the Environmental Management Framework Regulations.258
Overall, the basic thrust of the EIA process remains the same as under the 2006 EIA
regulations. There were textual changes to many of the provisions that do not amount to
significant changes of substance. Certain changes to the regulations reflect the amend-
ments that were made to s 24 (and the associated insertions of the new provisions such as
s 24K and 24L) during the period between the promulgation of the 2006 EIA regulations
and the new ones. This includes references in provisions relating to competent authori-
ties to the Minister of Minerals for purposes of mining-related authorisations.259 Another
fundamental change (more of terminology than substance) is the replacement of the
idea of ‘scoping’ (or, at least, scoping in itself) with ‘scoping and environmental impact
report’ — ‘S&EIR’. The more important changes of substance are as follows:
The definition of ‘alternatives’ has been amended to include explicit reference to
the ‘option of not implementing the activity’. The importance of this does not require
explanation. In the case of Sea Front for All v MEC: Environmental and Development
Planning, Western Cape Provincial Government,260 one of the grounds of review of a
successful environmental authorisation (decided in terms of the ECA) was that the MEC
failed to consider alternatives to the proposed development, as the ECA required her to
do. The court proceeded on the basis that it was a mandatory requirement261 to consider
the alternatives to the development, including the so-called ‘no-go’ option. On the facts, it
appeared that the relevant reports did not consider all alternatives, except for three design
options provided by the developer. The ‘no-go’ option was not considered at all. The court
highlighted the importance of public open space (which the land in question was), which
in turn emphasised how important consideration of the no-go option was. Consequently
the court decided that the decision be set aside as the MEC had failed to comply with a
material and mandatory condition of the ECA (the consideration of alternatives) and that
251
The discussion of the 2010 regulations is based on my discussion of the regulations in the 2010 Juta’s
Quarterly Review of South African Law.
252
GN R543 in GG 33306 of 18 June 2010.
253
Listing notice 1 appeared in GN R544 in GG 33306 of 18 June 2010, in which were also published Listing
notice 2 (GN R545) and Listing notice 3 (GN R546).
254
GN R547 in GG 33306 of 18 June 2010.
255
GN R660 in GG 33411 of 30 July 2010.
256
GN Rs 661–3 in GG 33411 of 30 July 2010.
257
GN R664 in GG 33411 of 30 July 2010.
258
GN R665 in GG 33411 of 30 July 2010.
259
See discussion on this above, 228.
260
2011 (3) SA 55 (WCC). Judgment in this case was handed down on 26 March 2010.
261
In terms of s 22(2) of the ECA and the relevant regulations.

her decision had been influenced by an error of law, in that the MEC had misunderstood
her obligation to consider information and reports on alternative land uses.
Changes in the EIA regulations were made to the provisions relating to the calculation
of days to include, inter alia, a provision to the effect that the period of 15 December to 2
January must be excluded in the reckoning of days, reflecting the reality that many activi-
ties (including public scrutiny) effectively shut down during this period. Public holidays
are also excluded.
The purposes of the regulations have been expanded to incorporate the objectives of
the environmental assessment process — ‘in order to avoid detrimental impacts on the
environment, or where it can not (sic) be avoided, ensure mitigation and management of
impacts to acceptable levels, and to optimise positive environmental impacts’. This is not
a new purpose but is inserted because it was not made explicit under the 2006 regulations.
More generous provision has been made for assistance to applicants, including the
duty on the competent authority to provide minutes of meetings on request by the appli-
cant or EAP. As for timeframes, the regulations require applicable timeframes to be met
by the competent authority (which is to be expected), but then curiously provide that
where certain applicable timeframes are not met,262 those timeframes are automatically
extended by 60 days. The timeframes in question relate to the acceptance of a basic
assessment;263 a decision on a basic assessment;264 the consideration of a scoping report;265
acceptance of an EIR (environmental impact report);266 and a decision on such report.267
It is difficult to avoid the conclusion that, in most cases, the ‘default’ time period will be
the prescribed period plus 60 days. There is now a duty on the applicant, within 12 days
of a decision having been reached, to notify all registered interested and affected parties
(I&APs) of the outcome of an application and the reasons for the decision. Previously, this
was discretionary. Several other related duties pertaining to the provision of information
to I&APs are also included.
Regulation 12 in the old regulations relating to liability of costs for applications has
been deleted.
There are several new provisions relating to alternatives to written notice being
required in cases where the intended recipient is, for example, illiterate.268 Provision is
now made for an I&AP to notify the competent authority of the failure of an environmen-
tal assessment practitioner (EAP) to meet the requirements for an EAP as set out in reg
17 — for example, expertise and independence.269
In the content of the basic assessment report,270 the environmental impacts to be
described have been expanded. Previously, there was reference to ‘a description and
assessment of the significance of any environmental impacts, including cumulative
262
See reg 9(2).
263
Reg 24.
264
Reg 25.
265
Reg 30.
266
Reg 34.
267
Reg 35.
268
See reg 15(2); reg 54(2)(e); reg 57(2).
269
Reg 18(2–4).
270
Reg 22.

impacts, that may occur as a result of the undertaking of the activity or identified alterna-
tives or as a result of any construction, erection or decommissioning associated with the
undertaking of the activity’. Now, the equivalent clause271 provides for
‘a description and assessment of the significance of any environmental impacts,
including—
(i) cumulative impacts, that may occur as a result of the undertaking of the activity
or identified alternatives or as a result of any construction, erection or decommis-
sioning associated with the undertaking of the activity;
(ii) the nature of the impact;
(iii) the extent and duration of the impact;
(iv) the probability of the impact occurring;
(v) the degree to which the impact can be reversed;
(vi) the degree to which the impact may cause irreplaceable loss of resources; and
(vii) the degree to which the impact can be mitigated.’
The basic assessment report must now also include a draft environmental management
programme, and several other new aspects set out in reg 22.
In respect of all applications (basic assessment, scoping and EIR), the EAP managing
the application must provide the competent authority with detailed, written proof of an
investigation as required by s 24(4)(b)(i) of the Act272 and motivation if no reasonable
or feasible alternatives exist. In terms of reg 25, a competent authority must, within 30
days of accepting a basic assessment report, or within 30 days of the lapsing of the 60
days contemplated in reg 9(2),273 grant or refuse the authorisation. If it is important for
timeframes to be met in the processing of such applications (and delays have been one of
the biggest issues of concern in the EIA process), it is puzzling why the regulations are
so generous as regards provision of time. While providing for an ‘extension’ in what are
described in effect as exceptional circumstances, no provision is made for justification of
the extension, with the result that the total of 120 days allowed (effectively six months)
will more than likely become the expected and usual time period within such decisions
will be made.
As far as the content of the scoping report is concerned,274 the description of the pro-
posed activity and a description of any feasible and reasonable alternatives that have been
identified are required. These have now been set out separately (the proposed activity
and the alternatives) presumably to highlight the importance of providing information
on alternatives. Previously,275 the scoping report had to include ‘a description of the
environment that may be affected by the activity and the manner in which the physical,
biological, social, economic and cultural aspects of the environment may be affected
by the proposed activity’. Now, reg 28(1)(e) (the equivalent) does not contain the words
‘physical, biological, social, economic and cultural aspects’. It is not clear why this has
271
Reg 22(i).
272
Section 24(4)(b)(i) of the Act provides for an investigation of potential consequences of impacts of the
alternatives to the activity on the environment and assessment of the significance of those potential conse-
quences or aspects, including the option of not implementing the activity.
273
See discussion above.
274
Reg 28.
275
The old reg 29.

been changed, because there is nothing in the Act that suggests that these aspects are
not to be considered. (In fact, according to NEMA and the Fuel Retailers case,276 for
example, these aspects are central to the decision-making process).
New requirements for the scoping report are:
●● a description of the need and desirability of the proposed activity;
●● a description of identified potential alternatives to the proposed activity, including
advantages and disadvantages that the proposed activity or alternatives may have on
the environment and the community that may be affected by the activity;
●● copies of any representations, and comments received in connection with the applica-
tion or the scoping report from interested and affected parties;
●● copies of the minutes of any meetings held by the EAP with interested and affected
parties and other role players which record the views of the participants; and
●● any responses by the EAP to those representations and comments and views.
The 2006 regulations referred to an environmental management plan, which is now
referred to as an environmental management programme (EMP). There are several new
requirements for an EMP:277
●● proposed mechanisms for monitoring performance assessment against the environ-
mental management programme and reporting thereon;
●● as far as is reasonably practicable, measures to rehabilitate the environment affected
by the undertaking of any listed activity or specified activity to its natural or prede-
termined state or to a land use which conforms to the generally accepted principle
of sustainable development, including, where appropriate, concurrent or progressive
rehabilitation measures;
●● a description of the manner in which it intends to:
■■ modify, remedy, control or stop any action, activity or process which causes pol-
lution or environmental degradation;
■■ remedy the cause of pollution or degradation and migration of pollutants;
■■ comply with any prescribed environmental management standards or practices;
■■ comply with any applicable provisions of the Act regarding closure, where appli-
cable;
■■ comply with any provisions of the Act regarding financial provisions for rehabili-
tation, where applicable;
●● time periods within which the measures contemplated in the environmental manage-
ment programme must be implemented;
●● the process for managing any environmental damage, pollution, pumping and treat-
ment of extraneous water or ecological degradation as a result of undertaking a listed
activity;
●● an environmental awareness plan describing the manner in which
■■ the applicant intends to inform his or her employees of any environmental risk
which may result from their work; and
276
Fuel Retailers Association of Southern Africa v Director General Environmental Management, Depart-
ment of Agriculture, Conservation and Environment, Mpumalanga Province 2007 (6) SA 4 (CC), dis-
cussed below, 259.
277
Reg 33.

risks must be dealt with in order to avoid pollution or the degradation of the
■■
environment;
●● where appropriate, closure plans, including closure objectives.
In so far as a decision on application is concerned, the Minister of Mineral Resources
may issue an authorisation only if the provisions of s 24P(1) of the Act (which refer to the
lodging of financial provision intended to address the costs of mine rehabilitation) have
been compiled with.
The content of the environmental authorisation 278 must contain details relating to the
EMP, including the requirements on the manner in which and the frequency with which
the EMP will be approved, amended or updated.
The 2006 regulations had a header ‘Amendment and withdrawal of environmental
authorisations’. Reference to ‘withdrawal’ has now been completely removed from the
regulations and the heading now reads: ‘Amendment and suspension of environmental
authorisation and environmental management programme’. In this regard, the regula-
tions now provide for reasons why a holder may apply for amendment.279 There is now
also a timeframe (30 days) within which the competent authority is required to decide
the application for amendment.280 The same deadline applies in respect of amendment at
the instance of the competent authority.281 As for the amendment of an EMP, this provi-
sion is completely new.282 The regulation deals with the circumstances under which an
amendment might be necessary, and the process — including public participation — for
amending an EMP. The new regulations deal with suspension instead of withdrawal, and
the circumstances wherein suspension may be carried out are expanded (ie expanded in
comparison with the criteria for withdrawal in the old regulations).283
As for public participation, I&APs are given the opportunity to comment on all the
reports set out in reg 56(3) (all the reports contemplated by the regulations overall) but
these reports must first go to the competent authority. Registered I&APs must submit
comments on draft reports to the EAP, who is required to record them, and they must sub-
mit comments on final reports to the competent authority, copying the EAP. Timeframes
are now provided for (40 days in most cases) within which comments from I&APs which
have to be referred to other government departments must be responded to. Should there
be no response from the government department in question, it will be deemed that there
are no comments.
In respect of appeals, the appeal no longer requires submission on an official form,
but must be in writing. Guidelines for appeals in terms of s 24J of the Act must be taken
into account. Within 20 days of the decision (this used to be 10 days) a person affected by
the decision must submit notice of intention to appeal to the relevant appellate official.284
278
Reg 37.
279
Reg 39(2).
280
See also reg 42.
281
Reg 45.
282
Reg 46.
283
Reg 47.
284
Reg 60.

The appeal must then be submitted within 30 days of the lapsing of the original 20 days
(which is a new requirement).285
A responding statement to the appeal may be submitted within 30 days286 (a copy of
which must be served on the appellant within 10 days of that 30 days), and the appellant
may then submit an answering statement within 30 days of having received the respond-
ing statement. He or she then has the new duty of serving a copy on the respondent within
10 days.
There is now also a deadline built in for the decision on appeal. The relevant appeal
official must reach a final decision on an appeal or appeals submitted within 90 days of
receipt of all relevant information, including any statements, supporting documentation,
reports or any other additional information requested, or recommendations of an appeal
panel which may assist the official concerned in the decision-making process.287 The offi-
cial is then required to inform the appellant and each respondent of the decision within 10
days of the decision. Whereas the old regulations allowed for reasons for the appeal deci-
sion to be requested, the new regulations require that the decision must contain reasons
for the decision.
Finally, the offences provision has been changed to provide for offences ‘in addition
to s 24F of the Act’ and to provide for a fine (not exceeding R1 million), which was not
specified before.
Listing Notice 1 consists of those activities that require basic assessment. According to
the Minister, the EIA system was overburdened by large numbers of applications associ-
ated with insignificant activities, and many of the changes to the activities in Listing
Notice 1 seem to reflect this. There are linguistic changes to most of the entries in the
Listing Notice, but most of these are not substantively important. Some of the changes
reflect the fact that several activities are now (since 2006) governed by different legisla-
tion from what applied in 2006 — in particular, the Waste Act288 and Integrated Coastal
Management Act.289 It is noticeable at first that several activities (which may initially be
regarded as possibly insignificant in the grander scheme of things, but this would surely
be subject to argument) are omitted from the list (for example, road construction, con-
struction of resorts and construction of towers and masts) but these are now incorporated
in Listing Notice 3.290 There are, however, some curious omissions that are not dealt with
elsewhere, such as the ‘release of any organism outside its natural area of distribution that
is to be used for biological pest control’.
Listing Notice 2 comprises those activities that require what is now referred to as
S&EIR (Scoping and Environmental Impact Reporting) - the activities that are regarded
as having most significant possible impacts on the environment. No major changes have
been made in respect of these activities. In some cases (for example, the construction
of facilities for storing dangerous goods) the thresholds have been changed. In the case
of mining-related activities, the substantive position remains much the same, but the
285
Reg 62.
286
Reg 63.
287
Reg 66(2).
288
National Environmental Management: Waste Act 59 of 2008.
289
National Environmental Management: Integrated Coastal Management Act 24 of 2008.
290
Discussed below.

activities are described with more explicit reference to the relevant provisions in the
MPRDA.291 There are some interesting new additions to the activities subject to S&EIR:
●● The physical alteration of virgin soil to agriculture, or afforestation for the purposes
of commercial tree, timber or wood production of 100 hectares or more;
●● The construction of aquaculture facilities within specified thresholds depending on
the species (animal or aquatic plant) being cultivated; and
●● The construction of an island, anchored platform or any other permanent structure on
or along the seabed.
Listing Notice 3 is a new listing notice and its purpose is to list activities where environ-
mental authorisation is required before commencement of that activity in specific identi-
fied geographical areas only. These activities require basic assessment.
There are 25 listed activities, many of which very similar or identical to certain activi-
ties previously listed in Listing Notice 1, in designated areas; either generally (for exam-
ple, outside of urban areas), or in specified types of area (eg protected areas; sensitive
areas identified in environmental management frameworks; critical biodiversity areas
identified in biodiversity plans) in specified provinces. It will therefore be important to
identify where the activity will be taking place, not only in respect of the relevant prov-
ince, but also in respect of the type of area within which the activity will take place.
This type of listing, in the context of reducing the burden of having to carry out
large numbers of environmental assessments for insignificant activities, is to be wel-
comed — assessment ought to be reserved for instances where the impact will be signifi-
cant. It is important, however, that the areas in which these activities are to be subject to
assessment be identified (eg the declaration of environmental management frameworks
(EMFs)) or the activities in question will not be subject to environmental assessment.
The purpose of the EMF regulations292 is to provide for the relevant authority to initiate
the compilation of information and maps, referred to in s 24(3) of the Act, specifying the
attributes of the environment in particular geographical areas; for such information to
inform environmental management; and for such information and maps to be used as
environmental management frameworks in the consideration, as contemplated in s 24(4)
(b)(vi) of the Act, of applications for environmental authorisations in or affecting the
geographical areas to which those frameworks apply. The importance of EMFs is evident
from the discussion of Listing Notice 3 above. Environmental management frameworks
are aimed at promoting sustainability; securing environmental protection; and promoting
co-operative environmental governance.
The Minister or relevant MEC (with the concurrence of the Minister) may initiate an
EMF for the area in question. This takes place after public participation. The develop-
ment of an environmental management framework must include an assessment of:
‘(a) the need for an environmental management framework;
(b) the status quo of the geographical area that forms the subject of the environmental
management framework;
(c) the desired state of the environment; and
291
Minerals and Petroleum Resources Development Act 28 of 2002.
292
GN R547 in GG 33306 of 18 June 2010.

(d) the way forward to reach the desired state.’

Regulation 4 sets out the content of an EMF as follows: it must:
‘(a) identify by way of a map or otherwise the geographical area to which it applies;
(b) specify the attributes of the environment in the area, including the sensitivity,
extent, interrelationship and significance of those attributes;
(c) identify any parts in the area to which those attributes relate;
(d) state the conservation status of the area and those parts;
(e) state the environmental management priorities of the area;
(f) indicate the kind of developments or land uses that would have a significant
impact on those attributes and those that would not;
(g) indicate the kind of developments or land uses that would be undesirable in the
area or in specific parts of the area;
(h) indicate the parts of the area with specific socio-cultural values and the nature of
those values;
(i) identify information gaps;
(j) indicate a revision schedule for the environmental management framework; and
(k) include any other matters that may be specified.’
Regulation 5 deals with the adoption and implementation of EMFs, requiring publication
in the Gazette, and implementation and monitoring on a regular basis. Provision is also
made for revision where necessary.
In my view, the use of the EMF tool is an entirely appropriate one in a country where
the human resources to deal with blanket authorisations of particular activities are con-
strained. It is a more efficient use of resources for activities only in sensitive areas to be
assessed. In order for this to work adequately, however, it is critical that the power to
initiate EMFs in terms of these regulations is used promptly and comprehensively. Given
state capacity, however, and the fact that the initiative for EMFs comes from a relatively
high government level, this may be difficult to achieve in practice.
5.3 Analysis of EIA regime

There are a number of issues relating to the EIA system, both previous and current, that
merit discussion. These are identified under the separate headings below.
Does EIA include consideration of social and cultural impacts?

The ECA empowered the Minister to make regulations relating to EIAs, which could
include ‘the identification of the economic and social interests which may be affected
by the activity in question and by the alternative activities’293 and ‘the estimation of the
nature and extent of the effect of the activity in question and the alternative activities on
the social and economic interests’.294 There was, however, no explicit reference to social
or economic impacts in the regulations, although the guidelines on EIA issued by the
Department of Environmental Affairs and Tourism (DEAT) did provide that ‘the effects
293
Section 26(a)(iv).
294
Section 26(a)(v).

on human health, socio-economic conditions, physical and cultural resources should be

included’.295
NEMA, as originally promulgated, was more explicit. It stated clearly that EIA is
concerned with the ‘potential impact on the environment, socio-economic conditions and
the cultural heritage’.296 Curiously, however, the Amendment Act removed the references
to socio-economic conditions and the cultural heritage. The significance of this removal
is, in part, tempered by close consideration of the definition of ‘environment’ in the Act:
‘the surroundings within which humans exist and that are made up of—
(i)
the land, water and atmosphere of the earth;
(ii) micro-organisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and the interrelationships among and
between them; and
(iv) the physical, chemical, aesthetic and cultural properties and conditions of the
foregoing that influence human health and well-being.’297
It seems clear from this definition that ‘environment’ includes the cultural properties of
the surroundings within which humans exist, which suggests that the cultural heritage
should be considered in the EIA process as it is part of the environment. Its specific men-
tion in s 24 would seem superfluous. As for socio-economic aspects, it has been held in
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and
Land Affairs298 that it is ‘abundantly clear that the [mandate of a government department
carrying out environmental authorisation] includes the consideration of socio-economic
factors as an integral part of its environmental responsibility’. This conclusion was based
on the consideration of the environmental right in s 24 of the Constitution, as well as
several other statutory requirements, including s 24 of NEMA, but even without that sec-
tion, there are several other provisions, such as the national environmental management
principles in s 2 of NEMA, that amply support the court’s conclusion.
There are other decisions which support this approach. In MEC for Agriculture, Conser-
vation, Environment & Land Affairs v Sasol Oil (Pty) Ltd299 the Supreme Court of Appeal
expressly recognised that NEMA requires that the interpretation of any law concerned with
the protection and management of the environment must be guided by the principles in s 2,
which have as their heart the principle of sustainable development, which requires organs
of state to evaluate the ‘social, economic and environmental impacts of activities’.300 In
Capital Park Motors CC v Shell South Africa Marketing (Pty) Ltd301 the Court held that the
‘legislature [in both the ECA and NEMA] has used the widest possible terms when matters
of this nature need to be considered’,302 which would include socio-economic considera-
tions. On this basis, the Court held that an applicant did have locus standi to approach the
295
DEAT EIA Regulations: Implementation of Sections 21, 22 and 26 of the Environment Conservation Act
Guideline Document (1998) at 23.
296
Section 24(1).
297
Section 1.
298
2004 (5) SA 124 (W) at 151E.
299
2006 (5) SA 483 (SCA).
300
At para [25].
301
Unreported case 3016/05 (T).
302
At para [17].

Court when its interest was of a commercial, rather than a strictly environmental, nature.303
The approach adopted in these cases was impliedly confirmed by the Supreme Court of
Appeal in Fuel Retailers Association of SA (Pty) Ltd v Director General Environmental
Management, Mpumalanga.304
Probably the most important case in this regard, is the Constitutional Court judgment
in Fuel Retailers Association of Southern Africa v Director-General: Environmental
Management, Department of Agriculture, Conservation and Environment, Mpumalanga
Province.305 The applicant (Fuel Retailers) had approached the High Court to review the
decision by the respondent (the Department) to authorise the development of a petrol
station in White River, Mpumalanga. The SCA upheld the Department’s decision, and
the ground of review which concerned the Constitutional Court was the allegation that
the Department had not considered the socio-economic impact of the construction of the
filling station, which it was obliged to consider.
It was common cause that in considering an application for authorisation of a develop-
ment in terms of s 22 of the ECA, the decision-maker was required to consider the socio-
economic impact of the proposed development.306 The Department, however, argued that
it was not necessary for it to consider the socio-economic impact, because this aspect
formed part of the need and desirability factors which had previously been considered by
the local authority when the latter approved the rezoning of the property in question.307
Having considered the Constitution and the relevant provisions in the ECA and
NEMA, the court concluded that ‘NEMA makes it abundantly clear that the obligation
of the environmental authorities includes the consideration of socio-economic factors
as an integral part of its (sic) environmental responsibility’.308 Leading on from this, the
court held that this obligation is not the same as the obligation on the local authority
to consider the need and desirability of the project.309 Consequently, the environmental
authority could not rely on the local authority’s need and desirability decision to satisfy
the consideration of the socio-economic impact of the proposed development. The deci-
sion, therefore, was set aside and referred back to the relevant authority.310 Although there
are problems with this decision, discussion of which is beyond the scope of this book,
the essential principle upon which it was based — that the environmental authorisation
process involves consideration not only of environmental but also of social and economic
factors — cannot be faulted.311
An interesting angle on consideration of socio-economic aspects was raised by SLC
Property Group (Pty) Ltd v Minister of Environmental Affairs & Economic Development
303
Cf a contrary decision in All the Best Trading CC t/a Parkville Motors v SN Nayagar Property Develop-
ment and Construction CC 2005 (3) SA 396 (T).
304
2007 (2) SA 163 (SCA).
305
2007 (6) SA 4 (CC).
306
See para [31] of the Fuel Retailers judgment.
307
Ibid.
308
At para [62].
309
At para [82].
310
This was the decision of the majority of the court, the judgment delivered by Ngcobo J.
311
See Michael Kidd ‘Removing the green-tinted spectacles: The three pillars of sustainable development
in South African environmental law’ (2008) 15 SAJELP 85. The entire volume 15 number 1 (2008) of
SAJELP is dedicated to articles discussing the Fuel Retailers decision.

(Western Cape).312 A condition purportedly imposed in the appeal decision (which was
set aside on other grounds in any event) required the accommodation in the planned
development of so-called gap housing (affordable housing for lower-income residents),
which had not been incorporated in the plan for the development that had been sub-
mitted for authorisation. The court recognised (after quoting the Constitutional court’s
decision in Fuel Retailers) that the decision-maker is required to take into account the
social, economic and environmental ‘impact’313 of the proposed activity. The respond-
ent’s answering affidavit indicated that the decision was heavily influenced by a policy
document called the ‘Western Cape Provincial Spatial Development Framework’, which
incorporates (in general terms) housing policies. The court’s response to this was that:
the first respondent is empowered, and obliged, to consider the impact of the proposed devel-
opment and associated activities on the environment and socio-economic conditions. The first
respondent is not empowered by the ECA to implement housing policies aimed at rectifying
injustices of the past.314
In my view, the requirement that the environmental decision-maker must consider the
economic and social pillars of sustainable development would entail taking into account
negative socio-economic impacts and to weigh positive impacts in the balance against
negative environmental impacts. It does not empower such official to impose positive
duties on the applicant to advance socio-economic conditions by adding to the physical
development, especially since the environmental impact of such physical development
would not have been considered in the environmental impact report, upon which the
authorisation would be based.
It is unlikely that the thinking behind the 2004 amendment to NEMA mentioned above
was to remove the provisions relating to cultural and socio-economic considerations
because they were redundant. It is apparent that the objective was to reduce the scope of
EIA, which is, in my opinion, a retrogressive step. The removal of express reference to
socio-economic conditions may well lead to reinforcement of the view that environmen-
tal law is concerned solely with ‘green’ issues and not with environmental justice. While
the definition of ‘environment’ would extend to consideration of the impact of activities
on human health, it is submitted that this is not sufficient. Despite these concerns, how-
ever, the body of precedent mentioned above, seen in the light of s 24 of the Constitution
and the NEMA principles, confirms that socio-economic and cultural considerations do
justifiably form part of the EIA consideration.
Appeals
Once an environmental authorisation is made, there is a right of appeal (and there was in
terms of the ECA regime as well). In terms of NEMA,315 any person may appeal to the
Minister against a decision taken by any person acting under a power delegated by the
312
[2008] 1 All SA 627 (C).
313
Ibid at para [36]. Emphasis provided by the court.
314
Ibid at para [42].
315
Section 43. Note that there are certain pending amendments to this section, all to do with the removal of
the Minister of Minerals from the process. The provisions quoted here do not include those dealing with
the minerals matters.

Minister under this Act or a specific environmental management Act,316 and any person
may appeal to an MEC against a decision taken by any person acting under a power
delegated by that MEC under this Act or a specific environmental management Act.317
An appeal under s 43 must be noted and must be dealt with in the manner prescribed
and upon payment of a prescribed fee.318 The Minister or an MEC, as the case may be,
may consider and decide an appeal or appoint an appeal panel to consider and advise the
Minister or MEC on the appeal.319 The Minister or an MEC may, after considering such
an appeal, confirm, set aside or vary the decision, provision, condition or directive or
make any other appropriate decision, including a decision that the prescribed fee paid by
the appellant, or any part thereof, be refunded.320 An appeal under this section does not
suspend an environmental authorisation or exemption, or any provisions or conditions
attached thereto, or any directive, unless the Minister or an MEC directs otherwise.321
In the Sea Front for All case,322 the court held that the appeal decision in that case to the
MEC was a wide appeal, essentially a hearing de novo.323 This approach is consistent with
the approach that I have seen adopted in practice in other provinces as well. In the same
case it was argued, in a review of an MEC’s decision on appeal, that there had been a
considerable delay between the issue of the initial decision (the RoD) and the appeal deci-
sion, such that there had been a material change in circumstances. The MEC’s decision
had been taken three years after the issuing of the RoD, and it was based on the scoping
report that had been completed more than four years before. The applicants argued that it
was incumbent on the MEC to decide the case on the basis of current information relating
to social, economic and environmental impacts and not on outdated information. On the
MEC’s own version, she did not consider any new information. In deciding whether there
were material changes in conditions, the court had regard to a report by the developer’s
experts to the effect that there had been noteworthy socio-economic changes (what could
be described as urban renewal) in the area, and decided that the MEC had been remiss in
not considering the changes in circumstances. The court concluded that:324
In the absence of information regarding the current socio-economic environment in Sea Point,
[the MEC] could not decide whether the proposed redevelopment of the site would, in fact, serve
a socio-economic need. Therefore, she was unable to balance the socio-economic consequences
of the development against the (negative) environmental consequences.
The court thus held that this was a fatal flaw to the decision in that the MEC had failed
to comply with s 6(2)(e)(iii) of the Promotion of Administrative Justice Act,325 which
316
Section 43(1).
317
Section 43(2).
318
Section 43(4).
319
Section 43(5).
320
Section 43(6).
321
Section 43(7).
322
Sea Front for All v MEC: Environmental and Development Planning, Western Cape Provincial Govern-
ment (n 260).
323
Ibid at para [21]. For the distinction between a wide and narrow appeal, see Tikly v Johannes NO 1963 (2)
SA 588 (T) at 592A–E; Cora Hoexter Administrative Law in South Africa (2007) at 66–7.
324
Ibid at para [75].
325
Act 3 of 2000.

makes it a ground of review for an administrator to fail to take into account relevant
considerations.326
Lengthy delays in decision-making

This has been a problem for some time and was seen as a major impetus behind the 2006
EIA regulations (and the ways in which they differ from the previous regime). Notewor-
thy is the fact that the 2006 regulations contained time limits for the entire decision-
making process. These time limits have been changed in the 2010 regulations. According
to the Department of Environmental Affairs and Tourism, a survey aimed at establishing
capacity in the provinces carried out in 2006 showed that about 44 000 applications had
been processed since 1997 (when the first EIA regulations came into force), of which half
were concluded within six months of application. A further third were concluded within
a year. Up to 6 per cent, however, took more than two years to be concluded.327 Similar
statistics were provided by the Director-General of the Department of Environmental
Affairs in November 2008.328 Will compulsory time limits be the answer? My feeling
is not. There are, in my opinion, two main reasons why there have been unacceptable
delays. The first is lack of capacity in the departments making the decisions, both numeri-
cally and in skills. In September 2008, 44 per cent of 469 EIA positions were reportedly
vacant.329 Given these resource constraints, the imposition of compulsory time limits
may well lead to ill-considered decisions, where the deadline rather than the substantive
merits of the decision is paramount.
The second cause of delay is the appeal process. The ECA provided for an appeal against
decisions relating to environmental authorisations. Such appeals must be made within
thirty days of the initial decision,330 but there is no time limit within which the decision must
be made and I know of several appeals which have been undecided for longer than a year.
The NEMA regulations in 2006 did not contain a time limit for appeals either. In terms of
the 2010 regulations, however, there is now also a deadline for the decision on appeal: the
relevant appeal official must reach a final decision on an appeal or appeals submitted within
90 days of receipt of all relevant information, including any statements, supporting docu-
mentation, reports or any other additional information requested, or recommendations of
an appeal panel which may assist the official concerned in the decision-making process.331
In my view, as long as the appeal process involves appeal to the Minister or MEC (which
is still the case under NEMA), there will be problems. While the NEMA regulations now
prescribe a deadline, this is likely to lead to hasty, ill-considered decisions even though they
326
See discussion on administrative justice below. This aspect of the case would also be relevant under that
heading.
327
Business Day 7 July 2006.
328
Nosipho Ngcaba ‘10 years of formalised EIA — Authorities perspective’ available at http://www.mon-
goose.co.za/eia/Downloads/Presentations/Nosipho_Ngcaba.pdf (accessed 28 February 2011). See Humby
(n 110) at 31.
329
Ngcaba (n 328).
330
Reg 11 in GN R1183 in GG 18261 of 5 September 1997.
331
Reg 66(2).

will be more prompt. A better system would be an independent tribunal, such as that in the
National Water Act.332
The possible suspension of the authorisation pending finalisation of the appeal is
another bugbear. It is submitted that the authorisation should be suspended while the
appeal is finalised, and this is what happens with most other appeals. Developers often
see appeals as a delaying tactic on the part of opponents to the project and have been
known to commence operations while the appeal is still outstanding since the ECA
was silent on this matter. Significantly, NEMA now provides that the operation of the
authorisation is not suspended pending finalisation of the appeal.333 This is probably a
reflection of the fact that appeals are not infrequent and that officials are often very tardy
in deciding them. It is an unfortunate way of addressing the problem, however, since it
suggests that an appeal against an authorisation is likely to be rejected. This is because it
is difficult to order a developer to dismantle what has already been carried out, were the
appeal to be upheld.
Administrative justice
A decision authorising (or not) an activity is an administrative decision and, accordingly,
has to comply with the requirements of administrative law. EIA decisions, perhaps more
frequently than ought to be the case, have frequently been held to be invalid because of
failure to comply with some or other requirement of administrative justice. There are
several examples.
In the reported case of South Durban Community Environmental Alliance v Head of
Department: Department of Agriculture and Environmental Affairs, KwaZulu-Natal334
the departmental officials concerned purported to grant an exemption from certain pro-
cedural requirements of the EIA regulations in terms of s 28A of the ECA. The ECA
requires an exemption to be in writing, which this exemption initially was not, and the
court found that the exemption was invalid for this reason. Even had it been in writing,
however, one of the flaws in the exemption decision was that the department had not
consulted the public before granting the exemption, which would have been a failure of
procedural fairness probably sufficient to render the decision invalid for that reason as
well.
In a second case, an appeal had been dismissed by the MEC of Agriculture and Envi-
ronmental Affairs in KwaZulu-Natal. This decision was taken on review because the
MEC did not give the appellant (a committee established in opposition to the develop-
ment) access to, and the opportunity to respond to, responses from other interested par-
ties to the appellant’s notice of appeal that was submitted to the MEC.335
332
Section 146 of Act 36 of 1998.
333
Section 43(7) of Act 107 of 1998. See above, 261.
334
2003 (6) SA 631 (D).
335
Merebank Environmental Action Committee v Member of the Executive Council for Agriculture and Envi-
ronmental Affairs (Province of KwaZulu-Natal) Unreported decision of the Natal Provincial Decision,
delivered 14 January 2002.

In Earthlife Africa (Cape Town) v Director-General: Department of Environmental

Affairs and Tourism,336 interested parties had been given an opportunity to comment
on a draft of the EIA report, but not the final report, which was held to be procedurally
unfair. Another example (not the subject of litigation) was the approval of a proposal
to develop a tolled national road through the Wild Coast (southern KwaZulu-Natal and
Eastern Cape), home of much endemic biodiversity. On appeal, the Minister set aside the
decision because of the fact that a member of the consultant (supposed to be independent
according to the regulations) was on the board of the engineering company that would
be carrying out the project. A similar problem was raised in Sea Front for All,337 where
a specialist consulted by the primary consultant drawing up the EIA report was alleged
to have an interest in the outcome of the process. The court held that the independence
requirement applied not only to the consultant, but also to any specialist that the consult-
ant utilised. This was, consequently, a material and mandatory condition of the relevant
legislative regime with which there had not been compliance.
In Shear v Eye of Africa Development (Pty) Ltd,338 the court had to decide whether an
amendment to an authorisation was a substantive amendment or not. If it was merely a
technical amendment, then public participation was not necessary, in terms of the relevant
NEMA regulation which stated that ‘if the application is for a substantive amendment,
or if the environment or the rights or interests of other parties are likely to be adversely
affected’, the applicant was required to conduct a public participation process.339 The
court, finding on the facts that it was substantive, accordingly held the amendment inva-
lid as it had not met the procedural fairness requirement.
One would expect that authorities would slip up less with further experience, but this is
currently a cause of frustration with the process because it leads to further delays.
Post-authorisation monitoring
Most applications under the EIA regulatory regime are approved, but developers are
seldom given a carte blanche to proceed as they like. Typically, the authorisation would
contain conditions aimed at mitigating environmental damage identified in the EIA
report. However, these conditions are frequently not effectively enforced.340 As Wood
says, ‘The problem of crippling under-funding and under-staffing of provincial and local
authorities means that they must rely on the complaints of neighbours and the integrity
of developers and their consultants for information about non-compliance.’341 This still
holds true today, and experience suggests that, even where there are complaints, authori-
ties are sometimes reluctant to take steps to address such problems due to lack of capacity
or other reasons that are less clear.
336
2005 (3) SA 156 (C).
337
Sea Front for All v MEC: Environmental and Development Planning, Western Cape Provincial Govern-
ment (n 260).
338
2010 (5) SA 129 (GSJ).
339
Reg 42(3) in the 2006 regulations.
340
See C Wood ‘Pastiche or postiche? Environmental impact assessment in South Africa’ (1999) South Afri-
can Geographical Journal 52 at 56.
341
Ibid.

The setting of conditions presupposes the enforcement of such conditions, and the
absence of monitoring seriously undermines the entire system. NEMA now addresses
this, at least on paper, by providing that adequate provision be made for the ongoing man-
agement and monitoring of the impacts of the activity on the environment throughout the
life cycle of the activity.342 The effectiveness of this measure is, however, dependent on
availability of adequate human resources, which is predicated on political will.
Political will
The fact that South Africa has many new environmental Acts, many of them innovative
and aimed at environmental conservation and sustainable development, could be seen as
indicative of a political commitment to these objectives. However, there have been some
suggestions that this could be just paper commitment. It was reported in 2006 that Presi-
dent Mbeki had attacked ‘green laws’, ‘saying they were causing development delays that
had contributed to “a quite considerable slowing down of economic activity”’.343 This
came soon after hostile comments made by the Minister of Housing, Lindiwe Sisulu.
Also, there was consternation about comments from the economic cluster of Ministries
that the De Hoop dam would be completed by 2010, despite the fact that EIA scrutiny had
not yet been completed.
On the other hand, the government introduced in 2006 a five-point action plan for
addressing backlogs in the EIA application process.344 The first point of the action plan
was to expedite the processing of applications still pending. To this end, DEAT allocated
a budget of R10 million to hire consultants to assist by making recommendations, the
decisions still to be made (as they must be in terms of the law) by the relevant depart-
ments. The second point was the development and implementation of ‘strategic spatial
systems’ — environmental management frameworks (dealt with in the new regulations)
and sensitive areas. The third point was the building and maintenance of human resource
capacity in the responsible authorities, whilst the fourth was the development and imple-
mentation of decision-support systems and tools (eg guidelines). Finally, the aim was to
develop and implement province-specific generic capacity and support strategies. Statis-
tics quoted above suggest that the plan did not have much positive impact by 2008 and
it is not clear to what extent there has been notable improvement at the time of writing.
Developments such as the action plan are to be welcomed but one is still left with the
uneasy feeling that the problems with the EIA process are being dealt with on a rather
piecemeal basis. Given South Africa’s development, the EIA process is one which will
continue to be involved, and it is hoped that officials will address the real problems, rather
than tinker with the legislation. The latter is not perfect, but this is not where the real
shortcomings lie.
342
Section 24E(a) of Act 107 of 1998.
343
Fiona Macleod ‘Mbeki joins assault on green laws?’ Mail & Guardian (7 August 2006).
344
Creamer Media’s Engineering News (8–14 September 2006).

8
Implementation and
Administration of
Environmental Law
Legislation usually depends for its effectiveness on enforcement and implementation
by the state. Since most environmental law in South Africa comprises legislation, the
state’s role in the implementation of environmental law is vital. This will be the first
topic considered in this chapter. Unfortunately, the state is often unable, owing to lack of
resources, to carry out its functions. Administrative bodies may, on occasion, be unwill-
ing for whatever reason to do what is required of them, and there are also instances when
the actions of the state itself are a threat to the environment. In these circumstances it is
often the case that individual members of the public take up the cudgels on the environ-
ment’s behalf. In the second part of the chapter, the remedies available to individuals will
be examined.
1. Administration by the state

1.1 Who is the state?
A number of organs of the state are responsible for the administration of environmental
legislation. At national government level government departments are under the control
of cabinet ministers. In the environmental sphere the departments of Environmental
Affairs and Tourism and Water Affairs and Forestry are the main players. The second
level is the provincial level, where one finds provincial departments responsible for envi-
ronmental matters, which differ in nomenclature and shared responsibilities from prov-
ince to province. Finally there is the local level, where local authorities are the relevant
control authorities. The legislative and administrative competencies of the various levels
of government are discussed in detail in Chapter 2.
1.2 Types of administrative responsibilities

There are a variety of different administrative functions which are required to be carried
out by administrative bodies in order for environmental legislation to be effective. These
functions, and examples of them, will be examined in turn.
Management functions
The most comprehensive powers given to administrative bodies are the powers of man-
agement of natural resources such as water, forests and national parks. For example, the
266

Implementation and Administration of Environmental Law 267
Minister of Water Affairs is responsible for managing the country’s water resources, in
terms of the National Water Act.1
Legislative functions
Most statutes delegate the power to officials (usually ministers) to make further legisla-
tion in the form of regulations. A good example is the regulations relating to environmen-
tal impact assessments discussed in the previous Chapter.2 A related power, conferred by
some Acts, is the power to exempt persons from the provisions of legislation.3
What could also be described as a legislative function is the responsibility of officials
to activate control provisions in legislation. This is a theme that has emerged frequently
in the preceding chapters. In terms of the National Environmental Management: Bio-
diversity Act,4 for example, the Minister has several legislative powers the exercise of
which is necessary for effective operation of the Act, such as enacting a list of protected
and threatened species and alien species.5 Other examples are the declaration of stand-
ards and priority areas in terms of the National Environmental Management: Air Quality
Act6 and the declaration in terms of the Hazardous Substances Act7 of substances to be
grouped in classes of hazardous substances.8
Authorisation functions
Throughout the world, much environmental legislation depends for its effectiveness on
the authorisation, permitting or licensing of persons to carry out certain activities. For
example, no person may operate a waste disposal site without a licence9 and hunting of
wild animals is regulated by means of a permit system.10 Related to this power is the
power to withdraw such authorisation. In terms of the Fertilizers, Farm Feeds, Agri-
cultural Remedies and Stock Remedies Act,11 the Registrar of Fertilizers, Farm Feeds,
Agricultural Remedies and Stock Remedies may cancel registration if, inter alia, it is
against the public interest for the product to remain registered.12
An important responsibility of the official who grants authorisation is the attachment
of conditions to such authorisation where necessary. For example, when environmental
1
Act 36 of 1998, s 3.
2
In terms of Chapter 5 of NEMA. See discussion in the previous chapter at 248 and 250.
3
For example, s 28A of the Environment Conservation Act 73 of 1989. See South Durban Community
Environmental Alliance v Head Of Department: Department Of Agriculture & Environmental Affairs
Kwa-Zulu Natal 2003 (6) SA 631 (D).
4
Act 10 of 2004.
5
See discussion above, at 110ff.
6
Act 39 of 2004, ss 9–11 and 18. See discussion at 160–1.
7
Act 15 of 1973.
8
Section 2.
9
Section 20 of the Environment Conservation Act 73 of 1989.
10
See, for example, the complex system provided for by the Natal Nature Conservation Ordinance 15 of 1974
in Chapter III (discussed in Chapter 5, see 100).
11
Act 36 of 1947.
12
Section 4(1).

authorisation is given in terms of the NEMA EIA regulations, the conditions are very
important measures for mitigation of environmental harm.13
Related to authorisation is the granting of rights. Some provisions empower officials to
grant rights to individuals that may be damaging to the environment. Examples are min-
ing rights and the allocation of rights to exploit marine resources in terms of the Marine
Living Resources Act.14
Judicial functions
Certain statutes provide for appeal against administrative decisions, which are heard and
decided either by more senior officials or by administrative bodies that have the function
of hearing appeals. Examples are found in NEMA, where appeal lies against certain
decisions to the Minister or MEC in question,15 and in the National Water Act, which
establishes a Water Tribunal.16 Appeal is discussed further below.17
Staffing functions
An important administrative power is the establishment and staffing of various statu-
tory control bodies. Examples of such control bodies are the South African National
Biodiversity Institute,18 South African National Parks,19 and environmental management
inspectors, discussed further below.20
In most cases, the powers conferred on officials are discretionary, the wording of
the Act invariably stating that the official ‘may’ do something, which means that the
control provision is often ineffective until such time as the official concerned actually
uses that power. This is a potential shortcoming of much of the legislation considered
in the preceding chapters, and has been a concern for several years, not only in the new
constitutional era. There are, however, some instances where the administrative body is
enjoined to act. For example, local authorities are required to take certain measures to
prevent nuisances arising in their areas of jurisdiction,21 and the Minister must publish a
national biodiversity framework in terms of the Biodiversity Act.22
2. Enforcement
There are a number of different ways in which the state can ensure that individuals
comply with legislative control provisions. A topical debate is whether the best regula-
tory mechanisms are of the ‘command and control’ type or alternative types involving
economic instruments and ‘self-regulation’. These are not alternatives because aspects
13
See s 24E of NEMA.
14
Act 18 of 1998. See above, 127ff.
15
Section 43.
16
Chapter 15 (s 146) of Act 36 of 1998.
17
At 229.
18
Chapter 2 of the National Environmental Management: Biodiversity Act 10 of 2004.
19
Chapter 5 of the National Environmental Management: Protected Areas Act 57 of 2003.
20
Section 31B of NEMA.
21
Section 20 of the Health Act 63 of 1977.
22
Section 38.

of both can be combined. ‘Command and control’ refers to a system where there is strict
monitoring by the authorities as to whether the law is being followed and where offenders
are prosecuted, using the criminal law. The use of economic instruments encourages
persons to act out of economic self-interest, thereby taking environmentally friendly
decisions. In the case of ‘self-regulation’, individuals would monitor their own opera-
tions and submit to the authorities periodic audit results in which their environmental
performance was set out.23
There are a number of specific mechanisms that can be used to secure compliance with
the law, any of which can be used to differing degrees under either (or a combination)
of the two models outlined above. These will be examined below. The first of these, the
criminal sanction, will (and should) most frequently be used as a last resort,24 often after
the use of the other mechanisms examined below. It is discussed first, however, since it is
the device most commonly encountered in our law.
2.1 Criminal sanctions

Most legislation provides that failure to comply with its provisions is an offence and
prescribes maximum penalties to be imposed upon conviction. Environmental legislation
is no exception. The criminal sanction is ‘by far the most widely prescribed sanction for
contraventions of legal and administrative provisions’.25
There are two ways in which the criminal sanction can be imposed: either as a primary
or independent sanction or as a subsidiary or supporting sanction.26 A primary sanction
is one which is applied in a case of contravention of a provision which outlaws certain
conduct directly. For example, it is an offence for any person unlawfully and intention-
ally or negligently to commit any act or omission which pollutes or is likely to pollute
a water resource.27 In this case the act of doing something which could pollute water is
the offence. In the case of a subsidiary sanction, compliance with legislation is sought
to be secured primarily by means of administrative controls (permits, for example) and
criminal sanctions are imposed only where the administrative control fails. For example,
in terms of the Biodiversity Act there are various restricted activities which cannot law-
fully be carried out without a permit.28 An offence like this, involving the lack of a permit
or authorisation, would be easier to prove in most cases than in the case of a primary
sanction. The use of subsidiary sanctions is therefore preferable to the use of primary
sanctions, mainly because of the relative ease of proving the offence.
Despite the extensive provision for criminal sanctions in South African environmen-
tal legislation, there have not been many successful prosecutions in the environmental
23
In this regard, see Michael Kidd ‘Environmental audits and self-incrimination’ (2004) 37 Comparative
and International Law Journal of Southern Africa 84.
24
See Michael Kidd ‘Environmental crime — Time for a rethink in South Africa?’ (1998) 5 SAJELP 181.
25
MA Rabie et al ‘Implementation of environmental law’ in RF Fuggle & MA Rabie Environmental Man-
agement in South Africa (1992) at 128. This observation, made almost 20 years ago, is confirmed by
the author’s more recent analysis of South African environmental legislation in ‘The protection of the
environment through the use of criminal sanctions: A comparative analysis with specific reference to
South Africa’ (2002) unpublished PhD thesis, University of Natal.
26
The terminology is used by Rabie et al (n 25) at 128.
27
Section 151(1)(i) of the National Water Act 36 of 1998.
28
Section 57 of Act 10 of 2004.

sphere generally, although there are successes in certain areas such as perlemoen poach-
ing.29 Although in many cases this is due to the offenders and the officials coming to an
agreement after negotiation, there are a number of shortcomings in the use of criminal
sanctions. These weaknesses can either be inherent in the criminal system, in which
case they would be present in any jurisdiction, or present in a particular country because
of prevailing attitudes or resource constraints or similar characteristics of that society.
These I call contingent weaknesses.30
Inherent weaknesses
Burden of time and cost
Criminal prosecutions involve significant costs to the state and there is a considerable time
delay between the commission of the offence and the conclusion of the trial. The delay may
be even lengthier in respect of environmental crimes because of the necessity of carrying
out scientific analyses, etc. By way of illustration, although there are aspects of this case
that make it somewhat unusual, in Feedmill Developments (Pty) Ltd v Attorney-General,
KwaZulu-Natal,31 samples for analysis were taken in July 1993 and charges first put to the
accused in March 1997, a delay of nearly four years. Because of the need to use expert
evidence in certain types of pollution trials, costs are higher than in trials dealing with the
more frequently encountered common-law crimes. Witnesses and other people involved
in prosecutions are frequently inconvenienced by numerous delays and postponements.
Authorities are justifiably reluctant to institute costly criminal prosecutions when the likely
consequence in most cases is a small fine. Part of the problem is that sentences provided
for are small, but the problem would not be necessarily resolved by stiffening penalties. In
many cases, even if the maximum fine provided for were severe, the facts might not justify
a large fine, making a costly criminal trial unattractive. This argument would obviously
be one that the law and economics theorists would put forward, but it is not confined to a
particular theory of law. Inefficient use of resources is bad in any language.
The practical impact of this feature of the criminal law is well illustrated by
Veljanovski,32 who observes that:
since prosecution is from eight to ten times more time-consuming to the [Health and Safety]
inspectorate than the average factory visit, it would be rational to concentrate resources on
information production rather than prosecution, especially when the former is more likely to
increase compliance.
Another problem with the time-consuming nature of the criminal process is one which
relates to the next shortcoming discussed immediately below: the delay in resolution of a
matter may well delay the remediation of the harm for which liability is being determined
in the court proceedings.33
29
See above, 130.
30
See Kidd (n 24).
31
[1998] 4 All SA 34.
32
C Veljanovski ‘Regulatory enforcement: An economic study of the British Factory Inspectorate’ (1983) 5
Law and Policy Quarterly 75.
33
Nicola Pain ‘Criminal law and environment protection — Overview of issues and themes’ in Neil Gun-
ningham, Jennifer Norberry & Sandra McKillop (eds) Environmental Crime (1995) 19 at 21.

Reactive nature of criminal law

The second weakness of criminal law is that it is designed to react to offences that have
already been committed, which might often be too late to prevent damage to the envi-
ronment. Bearing in mind that the purpose of environmental law is protection of the
environment, the criminal law in such circumstances does not achieve this objective,
other than by deterring people from committing similar harmful actions in the future.
There are other instruments, however, which achieve the ends of protection by adopting
a more preventive approach. An abatement notice procedure (or an interdict) would serve
in many instances to halt the damaging activity before the harm becomes too severe.
Problems of proof
Third is the universal problem of the more stringent standard of proof to be satisfied
in criminal cases. Proof of commission of an offence beyond reasonable doubt, it need
hardly be said, is considerably more difficult than the balance of probabilities required
in civil actions. In general, there are three principal evidential problems facing the pros-
ecution — identification of the offender, the requirement to obtain sufficient evidence
to provide proof beyond reasonable doubt, and the difficulty of establishing mens rea in
cases where the offence is not a strict liability offence.34
Procedural safeguards
Tied in with problems of proof are the additional obstacles to prosecution presented by
the constitutional rights to a fair trial.35 The courts, in considering these constitutional
rights, have consistently insisted on their importance, thereby suggesting that any limi-
tation of these rights would have to be justified very strongly indeed.36 South African
environmental legislation is awash with reverse onus provisions, presuming certain
elements of environmental offences unless the accused can prove otherwise. Whereas
some of these clearly are unnecessary, others were designed to deal with the extreme dif-
ficulty of proving elements of certain offences.37 Although very few of these provisions
in environmental legislation have yet been challenged in the courts, most reverse onus
provisions have not passed constitutional muster.38 None have passed the scrutiny of the
Constitutional Court. As others are likely to follow in the same way, the prosecutor’s task
will undoubtedly become more difficult.
In general, the presence of ‘due process’ safeguards makes criminal prosecution a
cumbersome and time-consuming business. As Kagan reflects, ‘Formal enforcement
34
Jeremy Rowan-Robinson, Paul Watchman & Christine Barker Crime and Regulation (1990) at 256. These
authors identify four problem areas but one, the need for corroboration, is not an essential requirement of
the South African law of evidence, although corroboration is of importance.
35
Section 35(3) of the Constitution of the Republic of South Africa, 1996. See discussion in Chapter 3.
36
See, for example, O’Regan J in S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) at para 24: ‘[the presump-
tion of innocence] is a pillar of our system of criminal justice’.
37
See, for example, the presumption contained in s 2(3) of the Marine Pollution (Control and Civil Liability)
Act 6 of 1981. The history of this provision can be traced through S v Peppas 1977 (2) SA 643 (A), particu-
larly at 653A et seq and (1981) 91 House of Assembly Debates column 573 (Wednesday 4 February 1981).
38
See discussion in Chapter 3. For a presumption in environmental legislation which was struck down, see S
v Mumbe 1997 (1) SA 854 (W).

… is slow, labour-intensive and subject to numerous procedural steps designed to pro-

tect the innocent, each step allowing the defendant further opportunities for delay and
obfuscation.’39
Preparation of cases for prosecution

The preparation of cases for prosecution may be a significant drain on the resources of an
enforcement agency and may constitute a powerful disincentive to embark on a criminal
prosecution, particularly where the possible penalty is light and, in addition, where any
fine imposed does not go into the coffers of the agency in question but rather into the
general fiscus.40
Officials’ attendance in court

Enforcement officials would frequently be required to appear in court as key prosecution
witnesses. The time spent in court is necessarily a sacrifice of time otherwise available
for other enforcement activities. Not only is this problematic, but appearance in court
may also be regarded as an unpleasant experience by some officials.41
The ‘moral’ aspect of criminal law

The idea of punishment under criminal law is frequently seen as involving a moral judg-
ment being made over the offender. People who are morally blameworthy are seen as
morally deserving of punishment. In the case of environmental offences, however, sev-
eral offences are purely regulatory and hence morally neutral — illegal but not criminal,
in other words. A possible moral dilemma is hence faced by enforcement officials who
may well be reluctant to use the criminal law to punish offenders for morally neutral
conduct.42 Tied in with this consideration is the fact that the criminal law is seen as a
device to be used on ‘criminals’, people seen as disreputable, whereas environmental
offenders often do not conform to that stereotype — polluters may well be otherwise
morally-upstanding contributors to the community’s economy.
Contingent weaknesses
Inadequate policing
Inadequate policing is a further problem faced by South Africa and many other countries
with strained government resources. The situation is hardly likely to improve. The admin-
istration of a number of South African environmental statutes has been assigned to prov-
inces that are spending most of their budgets on matters seen as more pressing, namely
education, health and welfare. Unfortunately, this defect would probably undermine the
39
RA Kagan ‘On regulatory inspectorates and police’ in Keith Hawkins & John M Thomas (eds) Enforcing
Regulation (1984) at 41.
40
Rowan-Robinson et al (n 34) at 258–9, citing various studies that have made this observation.
41
Ibid at 262–3.
42
SA Kadish ‘Some observations on the use of criminal sanctions in enforcing economic regulation’ (1963)
30 University of Chicago LR 423 at 444–9.

efficacy of alternative methods of state control as well, so it is not a problem unique to

criminal law.
Lack of public awareness

Lack of public awareness of threats to the environment and, in addition, of what is pro-
hibited, also impairs the efficacy of the criminal law. People who are aware that conduct
is wrong and prohibited by law may well assist officials by bringing offences to their
notice. In addition, public awareness — let us call it an environmental ethos — would
serve to underpin the status of the environmental criminal law and would be likely to
contribute to the attitude of judicial officers in hearing environmental cases. Currently,
the lack of development of this environmental ethos would mean that most of the popula-
tion would be relatively unconcerned with less serious contraventions of environmental
legislation. A fact that exacerbates the lack of environmental ethos is the incidence of
serious common-law criminal activity that is prevalent in South Africa today. This serves
to numb people to the significance of even serious environmental offences. People who
are concerned about the rate of murder, rape, robbery and similar offences will under-
standably be less attuned to the seriousness of environmental offences.
Difficulties of investigation
Difficulties of investigation present further challenges for criminal law. Many officials
not only require specialist scientific and technical expertise but must also be au fait with
the rules of evidence and criminal procedure. The need for proper training is important
but this is also undermined by lack of resources.
Lack of expertise of court officials

A further problem relates to lack of expertise of court officials. Many prosecutors in South
Africa are inexperienced, young lawyers who are often ‘thrown in at the deep end’. Those
who do not drown have to learn very quickly and develop expertise in prosecuting mainly
common-law crimes and everyday statutory offences such as traffic matters. Because
environmental prosecutions are few and far between, however, there is little expertise in
prosecuting these offences, which often require proof of difficult scientific facts. More-
over, it is difficult to escape the conclusion that, even where such cases are competently
prosecuted, magistrates can sometimes be intimidated by the intricacies of the scientific
evidence into requiring proof beyond any doubt rather than reasonable doubt.
Inadequate penalties
There are two aspects to this: first, is the penalty provided for by legislation; and, secondly,
the penalty actually imposed by the court. Much of the criticism of criminal enforcement
of environmental law in South Africa is levelled at the inadequate penalties provided
for by legislation.43 Despite these perceptions, however, most penalties provided for on
paper seem to be commensurate with the seriousness of the offence in question.44 What
43
Rabie et al (n 25) at 130; Cheryl Loots ‘Making environmental law effective’ (1994) 1 SAJELP 17 at 18.
44
See Kidd (n 25).

is important, then, where there are adequate penalties provided for, is that the courts use
the full range of the penalties at their disposal — imposing heavy penalties where the cir-
cumstances of the case warrant this. Studies elsewhere have shown that judicial officials
often impose inadequate penalties.45 Although there are no equivalent studies for South
Africa, it would seem that South African judicial officials err on the side of leniency.
When to use the criminal sanction

Given the shortcomings of the criminal sanction, when ought the criminal sanction to be
used? Keith Hawkins, in a study of the regulation of water pollution control in England,46
found that officials negotiated with polluters in an attempt to secure their compliance
with the law as the ‘default’ approach. It was only when this approach failed that the
criminal sanction was utilised.47 More specifically:
… there are two types of case where efficiency decrees prosecution to be the most appropriate
response. First, where persistent, noticeable failure to comply is concerned, belief in individual
and general deterrence demands public sanctioning…. Secondly, where a pollution incident
which causes substantial and noticeable damage, hazards water supplies, or involves the agency
in heavy expenditure takes place, the response will again be to prosecute.48
In the first type of case, the moral blameworthiness of the offender is plain from his or
her actions in persistently failing to comply with the law, most likely in circumstances
where the offender has been subject to persuasion from the relevant officials to comply.
In the second instance, there is not necessarily any blame or, more specifically, mens rea,
but the water pollution offences in effect at the time Hawkins was writing were strict
liability offences. Prosecuting the morally blameless in such circumstances is justified on
the basis that ‘the gravity of the harm is the key factor in this kind of case, outweighing
any complaints that morally blameless behaviour is being stigmatised as criminal by the
enforcement of a strict liability statute’.49
The use of the criminal sanction as a last resort or long-stop, as it is sometimes referred
to,50 has been observed in Australia51 and Canada52 as well. This approach can only be
understood in the context of the relationship between the officials and the regulated
community. Since this is often an ongoing relationship, where field officials periodically
inspect the premises and operations of the regulated, use of the criminal sanction at the
first sight of an offence, however minor, will sour the future relationship. What must
also be borne in mind is that the regulated persons in such circumstances are most often
productive members of society whose offences consist of carrying on an activity which
is not illegal per se, but only illegal where a certain standard is exceeded. In many cases,
45
Rowan-Robinson et al (n 34) at 264–5.
46
Environment and Enforcement (1984).
47
See also Rowan-Robinson et al (n 34) at 8 and 201.
48
Hawkins (n 46) at 201.
49
Ibid at 202.
50
David Farrier ‘In search of real criminal law’ in Tim Bonyhady Environmental Protection and Legal
Change (1992) 79 at 86, 88–92.
51
Ibid.
52
Kernaghan Webb Pollution Control in Canada: The Regulatory Approach in the 1980s (1988) at 18.

as well, the reason for the infringement is not wilful disregard for the law but, at worst,
negligence.
It would seem that the situation is similar in South Africa, where officials would pre-
fer to use the compliance approach (negotiation) in the first instance before resorting to
criminal sanctions. This is a tendency that this author has observed in numerous discus-
sions with enforcement officials in South Africa, but is also revealed from this analysis
by Rabie:53
… statistics on criminal prosecutions reveal only the ultimate phase of control where all other
strategies have failed and the sanction is engaged as a last resort. Such statistics tend to conceal
the considerable persuasive force of the negotiation process which precedes — and in many
cases obviates — criminal proceedings. For instance, during the past five years 91 criminal
cases involving soil erosion were served in the courts. Of this number, 25 were withdrawn
because of the accused’s compliance, while 11 are still pending. In 38 of the remaining 55 cases,
the outcome was successful. However, these statistics do not reveal that informal negotiation
led to compliance by 52 per cent of the approximately 1 400 land-users who are annually identi-
fied as transgressors of soil conservation control measures. Moreover, 47 per cent of land-users
comply with such measures after having been formally served with a direction in terms of the
Conservation of Agricultural Resources Act. It is only in respect of 1 per cent of land-users
that court proceedings are eventually initiated. It is important, nevertheless, to remember that
the success of the above negotiation process is due, in large measure, to the threat of criminal
proceedings which underpins the process.
While use of criminal sanctions as a last resort would probably be the approach in cir-
cumstances where there is likely to be an ongoing relationship between officials and the
regulated persons, not all environmental laws would present this type of scenario. This
would frequently be the situation in pollution control and land-use planning regulation,
but the situation would be different in many nature conservation offences.
Nature conservation offences are very often more akin to ‘traditional’ crimes, in that
their commission is not usually the unintended side-effect of otherwise socially useful
behaviour. People do not usually shoot elephants by accident. Although many nature
conservation offences (and here one thinks particularly of unlawful killing of animals
or, to be pejorative, poaching) may be attributable to poverty, ignorance54 or traditional
culture, many are carried out for personal profit in willful disregard of the law. In these
circumstances, a compliance approach would not be ideal, particularly since the damage
to the environment (in the form of a dead animal) has already been done.
Having said that, it is not necessary to resort to criminal sanctions in every instance
of infringement of nature conservation laws. In practice, however, current South African
nature conservation law may make this unavoidable. A nature conservation official is
unlikely to enter into negotiations with an offender because there is unlikely to be an
ongoing relationship between the parties, of the type that there often is between polluters
and pollution officials. The only alternative available to the nature conservation official
is, however, the criminal sanction. While this would certainly be the appropriate response
to premeditated poaching on a commercial scale, for example, many nature conservation
offences (picking indigenous plants, for example) are not in themselves very serious and
53
Rabie et al (n 25) at 130.
54
See, for example, S v Ntimbane 1990 (2) SACR 302 (N).

would not warrant the type of heavy penalties for which criminal prosecutions are suit-
able. There is a need for alternative means of enforcement in these circumstances.
Returning to the pollution example and the Hawkins study, he favours (or, at least, does
not reject) the use of strict liability in cases of serious environmental harm. This position
must be understood in the context of Hawkins’s failure to take into account modes of
enforcement other than criminal prosecution. It is possible to address serious pollution
events, where the polluter does not have mens rea, by using alternatives to the criminal
sanction.55
Where does the discussion in the preceding paragraphs lead us in respect of determin-
ing the appropriate role to be played by criminal sanctions? It is apparent that, as a matter
of fact, criminal prosecution is often used as a last resort in the case of environmental
offences. But ought this to be the case?
It is possible to refine this approach somewhat. In suggesting an appropriate approach,
it should be borne in mind that criminal prosecution is most appropriate in cases demand-
ing heavy penalties. On the other hand, where an offence is likely to attract a small
penalty, efficiency, both financial and otherwise, militates against the use of criminal
sanctions, especially if there are alternative modes of enforcement available. This sug-
gests that the criminal sanction should be reserved for the most serious environmental
offences. This is by no means a novel view. Packer56 states:
The criminal sanction is the law’s ultimate threat. Being punished for a crime is different from
being regulated in the public interest, or being forced to compensate another who has been
injured by one’s conduct, or being treated for a disease. The sanction is at once uniquely coer-
cive and, in the broadest sense, uniquely expensive. It should be reserved for what really mat-
ters.
Lazarus suggests that ‘criminal sanctions should be reserved for the most culpable subset
of offenses and not used solely for their ability to deter’.57
If this view is accepted, and it is submitted that this is a compelling view, the next
question that must be answered is: what are the most serious or egregious environmental
offences? In the United States, according to Smith,58
… criminal prosecutions are the pinnacle of a finely-tuned environmental enforcement system
that has strong administrative and civil enforcement mechanisms with both injunctive and civil
penalty powers. This allows criminal prosecution to be reserved for circumstances where there
is moral culpability in terms of criminally negligent, reckless or deliberate conduct.59
55
See Michael Kidd ‘The use of strict liability in the prosecution of environmental crimes’ (2002) 15 SACJ
23.
56
Herbert L Packer The Limits of the Criminal Sanction (1968) at 250.
57
Richard J Lazarus ‘Assimilating environmental protection into legal rules and the problem with envi-
ronmental crime’ (1994) 27 Loyola LA LR 867 at 883. See also Zada Lipman ‘Old wine in new bottles:
Difficulties in the application of general principles of criminal law to environmental law’ in Gunningham
et al (n 33) 31 at 42; C Reasons ‘Crimes against the environment: Some theoretical and practical concerns’
(1991) 34 Crim LQ 86 at 104, who suggests that ‘there is a role to be played by the use of criminal sanctions,
but only for the most serious harms and persistent offenders’.
58
Susan L Smith ‘An iron fist in the velvet glove: Redefining the role of criminal prosecution in creating an
effective environmental enforcement system’ (1995) 19 Criminal LJ 12 at 13.
59
See also Pain (n 33) at 28.

Following this broad approach, it is submitted that criminal sanctions should be reserved,
first, for cases where there is intentional wrongdoing. These would include so-called
‘midnight dumping’ offences, deliberate killing of animals or gathering of plants and
failure to comply with notices, directives or similar instructions by officials. Secondly,
prosecution should be used in cases where there is persistent wrongdoing, which is
indicative at least of dolus eventualis. For example, a polluter who repeatedly fails to
comply with emission standards where past infractions have been pointed out to him or
her would fall into this category. The third type would be an offender who has caused
serious harm to people or to the environment — for example, cases of the Exxon Valdez,
Bhopal, Seveso, Merriespruit and Treasure (an iron-ore carrier that sank off Cape Town
in 2000 with a subsequent severe oil spill) type — but only where there is mens rea on
the part of the offender, at least in the form of negligence.
The decision as to the circumstances in which criminal sanctions ought to be used
would probably have to be subject to enforcement officials’ discretion — it would be
difficult, if not impossible, for legislation to stipulate that criminal sanctions could be
imposed only in the situations outlined above. In order to allow the officials to exercise
this discretion in the manner suggested, however, it is necessary that there be alternative
methods of enforcement available to the officials, which are discussed later in the chapter.
Criminal provisions in South African environmental legislation

In addition to the numerous examples of provisions in environmental statutes declaring
certain conduct to be criminal offences, there are criminal enforcement provisions in
NEMA, which augment the criminal sanction or assist in the prosecution of environmen-
tal offenders. These are contained in s 34. There is a provision allowing for the court that
has convicted a person who is guilty of any of the offences listed in Schedule 3 of the Act
to order the payment of compensation for damage arising from the offence.60 The court
is also empowered to impose a fine equivalent to the monetary advantage the offender
would have gained from the offence, in addition to the usual fine provided for,61 or to
order that such remedial measures as the court may determine must be undertaken by
the convicted person. NEMA also provides for employer’s liability (not strictly vicarious
liability) and director’s liability.62 Further provisions, which apply to NEMA and the spe-
cific environmental management Acts,63 provide for, inter alia, forfeiture and admission
of guilt fines,64 and for magistrates’ courts to have jurisdiction to impose any penalty
prescribed by this Act or any specific Environmental Management Act.65
60
61
Section 34(3).
62
Section 34(5) and (7) respectively. See, further, Michael Kidd ‘Vicarious liability for environmental
offences’ (2003) 24 Obiter 186; ‘Corporate liability for environmental offences’ (2003) 18 SA Public Law
1; and ‘Liability of corporate officers for environmental offences’ (2003) 18 SA Public Law 277.
63
See above, 42.
64
Sections 34D and 34G respectively.
65
Section 34H.

Schedule 3 to the Act contains a list of specific offences, from a variety of environmen-
tal statutes, for which the provisions in s 3466 will apply. This Schedule may be amended
by the Minister or MEC.67
2.2 Alternatives to the criminal sanction

Alternative measures can be administrative measures, which do not require litigation, or
what could be referred to as civil measures, where a court decision is required, but not in
a criminal prosecution. There are several examples of such measures and those that are
provided for in South African legislation are discussed here.68
Administrative measures
Directives
Environmental legislation may provide for the power of an official to direct an individual
(offender) to take specified steps in order to comply with the law. Such directive powers
may include the so-called abatement notice. Probably the best-known directives in our
law are those found in s 28 of NEMA and s 31A of the Environment Conservation Act,
which were discussed in detail in Chapter 6.
A further such power is the compliance notice,69 provided for by NEMA by means
of an amendment to the Act. NEMA provides for the designation of environmental
management inspectors (referred to as EMIs),70 and sets out their mandates,71 prescribed
standards (such as qualifications for appointment as an EMI),72 functions73 and general
powers74 in detail. In addition to the general powers, s 31L provides:
‘(1) An environmental management inspector … may issue a compliance notice in the
prescribed form and following a prescribed procedure if there are reasonable grounds
for believing that a person has not complied—
(a) with a provision of the law for which that inspector has been designated …; or
(b) with a term or condition of a permit, authorisation or other instrument issued in
terms of such law.
(2) A compliance notice must set out—
(a) details of the conduct constituting non-compliance;
66
Section 34 before the Act was amended — ie ss 34A to 34G respectively do not apply to Schedule 3
offences.
67
Section 34(10).
68
For further detail, see Michael Kidd ‘Alternatives to the criminal sanction in the enforcement of environ-
mental law’ (2002) 9 SAJELP 21.
69
For full discussion, see Loretta Feris ‘Compliance notices — A new tool in environmental enforcement’
(2006) 9 Potchefstroom Electronic Law Review.
70
Section 31B. See also s 31BA and s 31C.
71
Section 31D.
72
Section 31E.
73
Section 31G.
74
Section 31H. See also powers in s 31I (in respect of power to seize items); s 31J (power to stop, enter and
search vehicles, vessels and aircraft) and s 31K (power to carry out routine inspections).

(b) any steps the person must take and the period within which those steps must be
taken;
(c) any thing which the person may not do, and the period during which the person
may not do it; and
(d) the procedure to be followed in lodging an objection to the compliance notice
with the Minister or MEC, as the case may be.
…
(4) A person who receives a compliance notice must comply with that notice within
the time period stated in the notice….’
The Act also provides for the right of a recipient to make representations objecting to the
compliance notice75 and provides that failure to comply with a compliance notice is an
offence.
This is potentially a very useful, cost-effective enforcement measure. Its effectiveness,
however, will be somewhat tempered by the fact that the Department of Environmental
Affairs and Tourism has confined the power to issue such notices to senior members of
the department.
Withdrawal of authorisation
Officials who are given the power to grant authorisations are usually also empowered to
withdraw authorisation in certain circumstances. Such withdrawal is usually provided
for in cases of non-compliance by the holder with the conditions of the authorisation, or
where the public interest demands it.76
Administrative penalties
The only administrative penalty currently provided for in South African environmental law
is the ‘administration fine’ provided for in s 24G of NEMA.77 An administrative penalty
differs from a fine imposed by a court after successful prosecution of an offender because
it may be imposed by an administrative official without the necessity of requiring a court to
do so. Administrative penalties are well-established in South African competition law, and
are certainly worth considering in order to improve enforcement of environmental law in
South Africa, due to the burdens of using the criminal law outlined above.78
Civil measures
Interdict
Administrative bodies do not conventionally use the remedy of an interdict in the case of
persons failing to comply with legislation. The reason for this is that legislation usually
75
Section 31M.
76
Examples are s 34C of NEMA; s 4 of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock
Remedies Act 36 of 1947; s 28 of the Marine Living Resources Act 18 of 1998 and s 93 of the National
Environmental Management: Biodiversity Act 10 of 2004.
77
See discussion on this above, 245.
78
See Melissa Fourie ‘How civil and administrative penalties can change the face of environmental compli-
ance in South Africa’ (2009) 16 SAJELP 93.

provides methods, such as criminal sanctions, for securing compliance with the legisla-
tion, and that an interdict is a remedy which is available only where there is no other
suitable remedy available to the applicant.
In Minister of Health and Welfare v Woodcarb (Pty) Ltd,79 the Minister applied for an
interdict to restrain conduct which contravened the prohibition of the carrying on of a
scheduled process in a controlled area. The primary issue for consideration was whether
the Minister had locus standi to apply for an interdict,80 given that the Act provides for
criminal liability for contravention of the provisions under consideration.81 Since the pur-
pose of the Act is to control scheduled processes, the court held that there was ‘no basis
for the contention that [the Minister] does not need the remedy of injunction to enable her
to control these processes effectively and thereby discharge her duties under the Act’.82
The importance of this decision is that it confirms the Minister’s ability to take proac-
tive steps to control air pollution from scheduled processes, rather than relying on the
cumbersome, reactive procedure of criminal prosecution, which provides for a paltry fine
easily able to be written off as a cost of operation.
It could do no harm, and would reduce the opportunity for challenge to the official’s
right to use an interdict procedure, to make explicit the power to use this procedure in
legislation. This is what has been done in the National Water Act.83 Section 155 provides
that a High Court may, on application by the Minister or the water management institu-
tion concerned, grant an interdict or any other appropriate order against any person who
has contravened any provision of this Act, including an order to discontinue any activity
constituting the contravention and to remedy the adverse effects of the contravention.
It must be borne in mind, however, that an interdict still requires the involvement of a
court and hence is a relatively costly and time-consuming process (although it is quicker
to have a matter resolved through an interdict than by using criminal sanctions). Admin-
istrative notice procedures, although lacking the gravitas of a High Court order, may
be equally if not more effective in putting a stop to harmful activities and the interdict
should not be used as a matter of course but only in cases where alternatives such as a
notice procedure are likely to be ineffective or otherwise problematic.
2.3 Economic instruments and self-regulation

Much has been written on economic or market-based instruments84 and it is beyond the
scope of this book to consider in detail their intricacies and the extent to which they
should be implemented. The purpose of using these instruments is to cure market failure
79
1996 (3) SA 155 (N).
80
The other issue dealt with was whether the process in question was a scheduled process, and the court
decided that it was (162B–164G).
81
In terms of s 9(2) of the Atmospheric Pollution Prevention Act, read with s 46.
82
161J–162A.
83
Act 36 of 1998.
84
See, for example, (and this is a very small sample) Klaus Bosselmann & Benjamin J Richardson (eds)
Environmental Justice and Market Mechanisms: Key Challenges for Environmental Law and Policy
(1999); J Bernstein Alternative Approaches to Pollution Control and Waste Management (1994); Richard
B Stewart ‘Economics, environment and the limits of legal control’ (1985) 9 Harvard Environmental LR
1; Jonathon Hanks ‘Achieving industrial sustainable development in South Africa: What role for “self-
regulatory” and “co-regulatory” instruments?’ (1998) 5 SAJELP 298.

caused by the externalities which occur when environmental costs are incurred without
payment. For example, a person who discharges emissions into a river imposes a ‘cost’
onto the environment. If he or she does not pay for the privilege of polluting the river,
then an externality occurs because the cost is incurred without corresponding payment.
To express it somewhat differently, economic or market-based instruments are designed
to encourage environmentally-beneficial behaviour by altering (which in some cases
means setting a price that has not existed before) the price of environmental resources
in order that they reflect more accurately the environmental costs of production and/
or consumption.85 By imposing a charge on the water polluter, the externality will be
removed and, moreover, the polluter will be provided with the incentive to reduce pol-
lution thus further reducing his or her costs. Market-based instruments thus encourage
persons to go beyond compliance. Examples of market-based instruments are taxes and
charges, tradable permits, environmental bonds, subsidies and deposit-refund systems.86
The South African government has shortly before publication of this book produced a
discussion document on carbon taxes.87
Co-regulatory instruments
A co-regulatory approach involves an interactive relationship, typically an agreement or
covenant, between the regulator and the regulated. In this situation, the overall policy
objectives are set by the regulator whilst the details are subject to negotiated agreement
between the two parties. This type of approach is particularly suitable for industry. South
African legislation currently provides for negotiated agreements, or, as they are referred
to in the National Environmental Management Act, environmental management co-
operation agreements.88
Information-based instruments
According to Hanks, these instruments ‘include measures taken to enhance awareness
on environmental issues, such as technical assistance programmes, advertising, eco-
labelling, performance reporting, group empowerment programmes and small business
incentive schemes’.89
85
See Hanks (n 84) at 309.
86
Ruth A Eblen & William R Eblen The Encyclopedia of the Environment (1994) at 177–8; RB Stauth &
PH Baskind ‘Resource economics’ in Fuggle & Rabie (n 25) 26 at 40–7. Cf Robert W Hahn and Robert N
Stavins ‘Incentive-based environmental regulation: A new era from an old idea?’ (1991) 18 Ecology LQ
1, who suggest that ‘most incentive-based approaches fall within one (or more) of five major categories:
pollution charges, marketable permits, deposit-refund systems, market barrier reductions, and government
subsidy elimination’ (at 7).
87
National Treasury Reducing Greenhouse Gas Emissions: The Carbon Tax Option (December 2010) Dis-
cussion Paper for Public Comment. This document is discussed below at 317.
88
NEMA, Act 107 of 1998, s 35. See also a Department of Environmental Affairs & Tourism Discussion
Document Environmental Management Co-operation Agreements: A Guide for their Design and Use
(June 2000). See discussion above, 43.
89
Hanks (n 84) at 309–10.

Self-regulatory instruments
As the name suggests, this entails business imposing its own regulatory structure without
any direct compulsion from the relevant regulator in that community. There may well
be pressure on the business to carry out self-regulation in the form of acceptance in the
market-place or competitive advantage. Examples of self-regulation approaches are the
ISO 14000 environmental management system standards90 and the chemical industry’s
Responsible Care programme. Self-regulation by itself would probably not work due to
the problem of free-riding, but as a parallel system to other regulatory approaches, it is
an important force.
3. Implementation by individuals
Although the majority of environmental law is, on the face of it, to be implemented by
various organs of the state, this does not always happen. There will always be instances
where individuals will see fit to implement the law. This may arise in two different cir-
cumstances. The first happens where a person is directly affected herself, and seeks a
remedy in her own personal interest. This may arise in a private law situation, where the
individual is subject to a nuisance or has suffered damages due to pollution, whereupon
she may use the law of nuisance or delict in order to remedy her plight, either by way
of interdict or action for damages.91 Alternatively, it may arise in a public law situation,
where the individual has been aggrieved by an action or decision by a public author-
ity. An example would be administrative refusal to grant a permit. The typical judicial
remedies available to individuals wanting to challenge administrative action (or inaction)
would be a mandamus (a mandatory interdict applied against public authorities)92 or judi-
cial review.93 The major problem with judicial review is that the action or decision of the
public authority may only be challenged if it is procedurally irregular, not on the merits.
The second situation arises where individuals seek to use the law to further what could
be called ‘the public interest’. The state, in being given power to administer laws, is sup-
posed to act in the public interest, but ‘it is simplistic to assume that the general interest
of the public is automatically represented by the public authority concerned just because
the latter has been established in order to further the public interest’.94 Many topical
contentious environmental issues involve individuals seeking to protect the public inter-
est in maintaining a sustainable environment, rather than protecting their own personal
interests. Public pressure against mining at St Lucia in the 1980s and, more recently,
against the N2 toll road through the Wild Coast are examples.
A major shortcoming of public interest litigation has historically been that, while
South African law has always been available to assist the person whose personal interest
has been infringed, it has often been difficult, if not impossible, for a person to obtain a
judicial remedy where he is invoking the public interest. The reason for this is the concept
90
See Johan Nel & Willemien du Plessis ‘ISO 14001 and environmental law’ (2002) 9 SAJELP 51.
91
See further discussion above, 145ff.
92
See Lawrence Baxter Administrative Law (1984) at 687–91.
93
See ibid Chapter 10.
94
Ibid at 57.

of standing to sue or locus standi. Recently, however, the new constitutional provisions
and, later NEMA, have ameliorated the position in this regard.
3.1 Locus standi

Locus standi: pre–1994
The issue of locus standi is one which the court considers in limine, before the merits of
the case are examined. Should the court decide that the plaintiff (or applicant) does not
have locus standi, the court will not examine the merits of the case at all, even if there is
a clear illegality. An example of this, in the environmental field, was Verstappen v Port
Edward Town Board.95 In order for a plaintiff to have locus standi, the courts must be
satisfied that he has a sufficient interest. A sufficient interest is one in which the plaintiff
has a legal right or recognised interest which must be direct and personal.96 There is not
a closed category of legal rights or recognised interests which satisfy the test, since it is
a flexible concept which depends on the ‘ever-varying circumstances of our social life’.97
Examples of rights which will invariably fall under this rubric are personal liberty98 and
proprietary rights (including both pecuniary and ‘pure economic’).99 In the early 1990s,
the Appellate Division decided that an infringement of a person’s dignitas was also suf-
ficient for locus standi.100 The question of whether a person has a right to a healthy envi-
ronment is more controversial, although it has been recognised that a threat to a person’s
health satisfies the locus standi requirement.101
The interest must also be direct in that it directly concerns the complainant.102 This is
also a flexible requirement.103 Finally, the interest must be personal to the complainant.
This does not mean that the interest must be special to the complainant (in other words,
one which is not shared by others),104 although there are a few, apparently mistaken,105
decisions which held that this was necessary.106
The requirement of a sufficient, direct and personal interest means that any person who
approaches the court wishing to vindicate the public interest will not have locus standi.107
95
1994 (3) SA 569 (D).
96
Baxter (n 92) at 652.
97
Director of Education, Transvaal v McCagie 1918 AD 616 at 627.
98
Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A) at 310.
99
Jacobs en ’n Ander v Waks 1992 (1) SA 521 (A) at 534–5.
100
Jacobs en ’n Ander v Waks (supra).
101
Dell v Town Council of Cape Town 1879 (9) Buch 2.
102
Dalrymple v Colonial Treasurer 1910 TS 372 at 390–1; Bagnall v The Colonial Government (1907) SC 470
and Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 87.
103
104
Dalrymple v Colonial Treasurer (supra) at 380–1 and 399; Director of Education, Transvaal v McCagie
(supra) at 628–9 and Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd (supra).
105
106
For example, Von Moltke v Costa Areosa (Pty) Ltd 1975 (1) SA 255 (C). See Baxter (n 92) at 657 n 96 for
further examples.
107
Bagnall v Colonial Government (supra); Dalrymple v Colonial Treasurer (supra).

This is a major obstacle for the environmentalist since most environmental issues
affect the public interest rather than the interest of an identifiable plaintiff.108 There are
several exceptions to the general rule, which need not be considered here, since the locus
standi position has been widened, as indicated above.
One further issue that needs to be canvassed is whether organisations may litigate in
the interests of their members. This is significant for the environment since there are
many environmental organisations and pressure groups which, in practice, would be
more likely to challenge administrative action than would private individuals. Again,
such complainants would seem to have lacked locus standi,109 unless able to show that the
organisation itself was adversely affected.110
In summary, therefore, the common-law position as regards locus standi was an obsta-
cle to an individual’s being able to vindicate the public interest in a healthy or undamaged
environment, unless he had been personally affected. There were some cases which sug-
gested that the plight of the environmentalist had been ameliorated,111 but the hurdle of
locus standi served, not so long ago, to scupper litigation in an environmental issue where
there was clear illegality.112
Locus standi: post–1994

The Constitution, which includes a bill of fundamental rights, has ameliorated the locus
standi position considerably.113 According to s 38 of the Constitution,
‘Anyone listed in this section has the right to approach a competent court, alleging that
a right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a
court are:
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.’114
108
See, generally, Andre Rabie & Cor Eckard ‘Locus standi: The administration’s shield and the environmen-
talist’s shackle’ (1976) 9 CILSA at 141 and Cheryl Loots ‘Locus standi to claim relief in the public interest
in matters involving the enforcement of legislation’ (1987) 104 SALJ at 131.
109
Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) v Muslim Judicial Council (Cape) 1983 (4) SA
855 (C) at 863H–864G; South African Optometric Association v Frames Distributors (Pty) Ltd 1985 (3)
SA 100 (O) at 103F–105C; Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA
749 (N) at 758G–759D. Cf Transvaal Indian Congress v Land Tenure Advisory Board 1955 (1) SA 85 (W)
at 89G–90B; Ex parte Natal Bottle Store-Keeping and Off Licensees Association 1962 (4) SA 273 (D).
110
Transvaal Canoe Union v Butgereit 1986 (4) SA 207 (T); Molotlegi v President of Bophuthatswana 1989
(3) SA 119 (B) at 127D.
111
Bamford v Minister of Community Development and State Auxiliary Services 1981 (3) SA 1054 (C) and
Jacobs v Waks (supra).
112
Verstappen v Port Edward Town Board (supra).
113
The Constitution of the Republic of South Africa, Act 200 of 1993, was the interim Constitution pending
the coming into effect of the final Constitution of the Republic of South Africa, 1996.
114
This section is substantially the same as s 7 of the interim Constitution.

The effect of this is that it ameliorates the common-law position as regards locus standi
of any person referred to above, provided that there is a threat or infringement of a right
protected by the Bill of Rights. It would seem, therefore, from the literal meaning of the
section, that a person seeking to enforce a right which is not in the Bill of Rights, would
have to satisfy the common-law rules relating to locus standi.
The significance of the constitutional change for environmentalists is that there is an
environmental right in the Constitution, as discussed above.115 The right states, in part,
that everyone has the right to an environment that is not harmful to his or her health or
well-being.116 If there is a threat to or infringement of this right, it can be vindicated in
the public interest, by the affected individual, and/or by a member of a group, and/or by
an association acting in the interest of its members (which was not possible in terms of
the common law).
In the case of Wildlife Society of Southern Africa v Minister of Environmental Affairs
and Tourism of the Republic of South Africa,117 there arose an opportunity for the court
to decide upon the locus standi of the applicants, the first of which was an organisation
acting in the interests of its members (and in the public interest), under the terms of the
interim (1993) Constitution. Counsel for the respondents conceded that the applicants had
locus standi, on an apparent reading of the Constitution.118 This was unfortunate in that
it prevented the court from laying down a precedent on the interpretation of the environ-
mental right. The right refers to ‘health and well-being’. Clearly this case, involving the
erection of cottages on the Transkei Wild Coast contrary to applicable legislation, did not
involve the health of the applicants. Locus standi would therefore have to be based on
the allegation that the applicants’ ‘well-being’ was threatened or infringed. The court’s
interpretation of this term would have been welcome as there was no precedent as to the
meaning of the phrase, but it was not necessary in the circumstances.119
Nevertheless, the Wildlife Society judgment is interesting for dicta relating to locus
standi in situations where an individual seeks to enforce environmental legislation. Pick-
ering J expressed the opinion that:
there is much to be said for the view that, in circumstances where the locus standi afforded per-
sons by … the Constitution is not applicable and where a statute imposes an obligation upon the
state to take certain measures in order to protect the environment in the interests of the public,
then a body such as the first applicant, with its main object being to promote environmental
conservation in South Africa, should have locus standi at common law to apply for an order
compelling the state to comply with its obligations in terms of such statute.120
This dictum is strongly supported, but it is important to reflect that it is not a statement of
the law as it is, but rather a plea for the common law to develop in such a way.121 Possibly
115
Chapter 2.
116
Section 24. The full phrasing of the right is discussed in Chapter 2. In the interim Constitution, s 29
provided that every person shall have the right to an environment which is not detrimental to his or her
health or well-being.
117
1996 (3) SA 1095 (Tk).
118
Section 7(4)(b) read with s 29 of the interim Constitution.
119
The concept of ‘well-being’ has subsequently been addressed by a court: HTF Developers (Pty) Ltd v The
Minister of Environmental Affairs and Tourism 2006 (5) SA 512 (T). See above, 22.
120
At 1105A–B.
121
See 1106I–J.

the best way of ensuring that the views expressed by the judge are realised is for legisla-
tion to contain express provisions allowing any person access to court in order to enforce
the provisions of that legislation, so-called ‘citizen suit clauses’.122
A second interesting aspect of the Wildlife Society case is the judge’s treatment of the
objection to the broadening of locus standi that the floodgates will be opened, giving rise
to an uncontrollable torrent of litigation by cranks and busybodies. The judge responds:
[I am not persuaded], given the exorbitant costs of Supreme Court litigation, that should the law
be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous
applications against the state. Should they be tempted to do so, I have no doubt that an appropri-
ate order of costs would soon inhibit their litigious ardour.
In any event, whilst cranks and busybodies who attempt to abuse legal process do no doubt
exist, [such a figure] is, in my view, … more often a spectral figure than a reality.
It is submitted that this always seemed to be the most appropriate response to the ‘flood-
gates’ argument and it is good to see it being clothed in judicial respectability.
The fallaciousness of the ‘floodgates’ argument is demonstrated by the fact that the
courts have not been inundated by environmental cases since the constitutional provisions
discussed above have come into effect, nor since s 32 of NEMA has been enacted. Section
32 of NEMA goes even further than the s 38 of the Constitution in giving environmental
litigants locus standi. It provides:
‘(1) Any person or group of persons may seek appropriate relief in respect of any breach
or threatened breach of any provision of this Act, including a principle contained in
Chapter 1, or any other statutory provision concerned with the protection of the envi-
ronment or the use of natural resources—
(a) in that person’s or group of person’s (sic) own interest;
(b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to
institute such proceedings;
(c) in the interest of or on behalf of a group or class of persons whose interests are
affected;
(d) in the public interest; and
(e) in the interest of protecting the environment.’
This section provides locus standi to anyone seeking relief in respect of a breach or
threatened breach of ‘any statutory provision concerned with the protection of the
environment or the use of natural resources’, not just NEMA itself.
Section 32 goes further. Not only has locus standi been an obstacle to environmental
litigation, but the possibility of paying the costs of the opposing party if one loses has also
served as an important disincentive to go to court. Now, s 32(2) provides that:
‘A court may decide not to award costs against a person who, or group of persons
which, fails to secure the relief sought in respect of any breach or threatened breach
of any provision of this Act … or a specific environmental management Act, or of any
other statutory provision concerned with the protection of the environment or the use
of natural resources, if the court is of the opinion that the person or group of persons
acted reasonably out of a concern for the public interest or in the interest of protecting
122
See Rabie et al (n 25) at 135.

the environment and had made due efforts to use other means reasonably available for
obtaining the relief sought.’
In Silvermine Valley Coalition v Sybrand van der Spuy Boerderye123 the court applied
this section in favour of the losing applicant, finding that it had met the requirements in
the section. In Wildlife and Environment Society of Southern Africa v MEC for Economic
Affairs, Environment and Tourism, Eastern Cape Provincial Government,124 the appli-
cant (the Wildlife and Environment Society of South Africa (WESSA)) had concerns
about the construction of an incinerator in Port Elizabeth. Following the EIA process, the
Eastern Cape MEC issued a Record of Decision authorising the process. WESSA, who
was a registered Interested and Affected Party, was concerned that the incinerator would
produce toxic pollutants and decided to appeal against the decision to the MEC. For vari-
ous reasons, the appeal was not submitted timeously and the MEC refused to consider it.
WESSA then decided to take the matter on review. After having lodged the applica-
tion, WESSA became aware of the fact that their concerns were based on the process as
described in either the first or second versions of the Scoping Report and not the final
report, which contained a different process and would produce significantly less pollut-
ant than the one described in the earlier versions. This (at least initially), according to
WESSA, became apparent only when WESSA received the answering affidavits from
the respondents. WESSA decided to withdraw the application, and offered to settle on the
basis that each party would bear its own costs. The respondents did not accept this and
the first two respondents (the MEC and the Director of Environmental Affairs) brought
an application for costs, which was the subject of this judgment.
The salient findings of the court were, first, that the court was prepared to consider the
application of s 32(2) of the National Environmental Management Act to the matter, even
though WESSA (the applicant) had withdrawn the case. The court held that it was not in
dispute that the matter was brought in the public interest and in the interest of protecting
the environment, leaving the issues for resolution whether WESSA acted reasonably and
whether it made due efforts to use other means available for obtaining the relief sought.
Despite WESSA’s contention that the error was due to the Scoping Reports’ being indis-
tinguishable, the court held that:
there was a considerable degree of confusion prior to the launching of the application as to
which of the three reports was indeed the Final Scoping Report. Applicant and its attorneys
must have been alive to the very real possibility of error.125
It added that ‘the long road leading to litigation was lined with alarm bells, to which,
unfortunately, no proper heed was paid by applicant’.126 Consequently, the court held that
WESSA’s conduct in launching the application was not reasonable and therefore s 32(2)
of NEMA was not applicable. It accordingly decided to award costs to the respondents.
The tone of the judgment is such that, had the application been found to be reasonable,
it seems likely that the judge would have found in WESSA’s favour. The lesson learned
from the case is that environmental activists (or any litigants, for that matter) must be
123
2002 (1) SA 478 (C).
124
2005 (6) SA 123 (E).
125
At 142.
126
Ibid.

extremely careful before embarking on litigation, even if they are protected by s 32(2) of
NEMA.
A better outcome for the applicant, although it took litigation all the way to the Consti-
tutional Court to obtain the appropriate relief, was the case of Biowatch Trust v Registrar,
Genetic Resources.127 Section 32 of NEMA, although mentioned in the judgment, did
not play an important role in the decision, but this is an important decision as regards
costs orders in public interest cases. The case arose from an application in the High
Court for information relating to activities involving genetically modified organisms. As
the court stated in its judgment, ‘although Biowatch had been largely successful in its
claim against the government agencies, and even though it obtained information, whose
release Monsanto [a company which had intervened to oppose Biowatch’s application]
had strongly opposed, it found itself in the position of having to foot the bill for all its
own costs, and in addition, to pay the costs incurred by Monsanto’.128 An appeal to the
Full Bench of the Transvaal Provincial Division was unsuccessful, and leave to appeal to
the Supreme Court of Appeal was refused. It then appealed to the Constitutional Court
(CC), which had to decide on whether to allow leave to appeal, and whether the appeal
would be successful.
The court held that the award of costs in a constitutional matter itself raises a constitu-
tional matter and therefore the CC had jurisdiction to hear it.129 The court also decided that
hearing the appeal would be in the interests of justice. The court said that an important
question was whether the general principles developed by the courts with regard to costs
awards needed to be modified to meet the exigencies of constitutional litigation. Because
the answer to this question has a direct bearing on the correct approach to the issues at the
heart of this matter, the court accordingly concluded that it was in the interests of justice
for leave to appeal to be granted.130
The court indicated that the case raised four issues concerning costs awards in consti-
tutional litigation, viz:
‘(a) whether costs awards in constitutional litigation should be determined by the sta-
tus of the parties or by the issue;
(b) what the general approach should be in relation to suits between private parties
and the state;
(c) what the general approach should be in constitutional litigation where the state is
sued for a failure to fulfil its constitutional and statutory responsibilities for regu-
lating competing claims between private parties; and
(d) the role of appellate courts in appeals against costs awards.’
In answer to the first question, the court concluded, in short, that the status of the parties
was not important in deciding costs issues, but that ‘the primary consideration in con-
stitutional litigation must be the way in which a costs order would hinder or promote the
advancement of constitutional justice’.131
127
2009 (6) SA 232 (CC).
128
Ibid at para [4].
129
Ibid at para [10].
130
Ibid at para [12].
131
Ibid at para [16].

As for the second question, the court relied on a principle set down in the Affordable
Medicines case,132 that in litigation between the government and a private party seeking
to assert a constitutional right, ordinarily, if the government loses, it should pay the costs
of the other side, and if the government wins, each party should bear its own costs.133
This principle is not absolute, however, and, in essence, the applicant must be relying
substantively on constitutional rights (not as a façade) and be bona fide.
On the third question, the court’s position can be summed up in the statement that ‘in
general terms costs awards in these matters should be governed by the over-arching prin-
ciple of not discouraging the pursuit of constitutional claims, irrespective of the number
of private parties seeking to support or oppose the state’s posture in the litigation’.134 In
short, the role of the appellate courts in appeals against costs awards should not be to
decide on the correctness of the awards, but (in the nature of judicial review, essentially)
to decide whether the decision on costs was made without proper appreciation of the
law or misdirection on the facts — what could be called a ‘demonstrable blunder’ or
‘unjustifiable conclusion’.135
Turning to the case at hand, the court considered the judgments in the High Court and
the Full Bench and, in short, decided that, since Biowatch was substantially successful
in its application, any ‘misconduct’ of Biowatch fell far short of the conduct that would
justify an adverse costs order. The court concluded, therefore, that the general rule that
the state ought to pay Biowatch’s costs should be upheld in this matter. As far as the costs
in relation to Monsanto were concerned, the court decided that:136
the general point of departure in a matter where the state is shown to have failed to fulfil its
constitutional and statutory obligations, and where different private parties are affected, should
be as follows: the state should bear the costs of litigants who have been successful against it,
and ordinarily there should be no costs orders against any private litigants who have become
involved. This approach locates the risk for costs at the correct door — at the end of the day, it
was the state that had control over its conduct.
Consequently, the court decided that the costs award in favour of Monsanto was
unsustainable.
Finally, s 32(3) provides for the claiming of costs by successful applicants who have been
represented pro bono.137 In Hangklip Environmental Action Group v MEC for Agriculture,
132
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC).
133
Biowatch (n 127) at para [22].
134
Ibid at para [28].
135
Ibid at para [31].
136
Ibid at para [56].
137
Section 32(3). This subsection reads:
‘Where a person or group of persons secures the relief sought in respect of any breach or threatened breach
of any provision of this Act, or of any provision of a specific environmental management Act, or of any
other statutory provision concerned with the protection of the environment, a court may on application—
(a) award costs on an appropriate scale to any person or persons entitled to practise as advocate or
attorney in the Republic who provided free legal assistance or representation to such person or group
in the preparation for or conduct of the proceedings; and
(b) order that the party against whom the relief is granted pay to the person or group concerned any
reasonable costs incurred by such person or group in the investigation of the matter and its prepara-
tion for the proceedings.’

Environmental Affairs and Development Planning, Western Cape,138 the applicant requested
an order in terms of s 32(3) of NEMA. It would appear that the purpose of this section is to
allow a pro bono legal representative to claim his or her costs in providing assistance in the
matter. The court correctly held that the Western Cape Land Use and Planning Ordinance
(which was the statute relevant to the dispute in the case) qualified as ‘any other statu-
tory provision concerned with the protection of the environment’, and granted its order in
the following way: ‘the costs to be borne by the first respondent shall include fees and
disbursements in respect of legal assistance and/or representation provided hitherto free
of charge to the applicant by its counsel and by its erstwhile attorneys’.139 The court raised
concerns about s 32(3) allowing payment of costs to the practitioners directly, rather than to
the litigant, and the wording adopted by the court is aimed at avoiding this dilemma. This
judgment is the first (and, so far, only140) case in which this section has been invoked.
3.2 Private prosecution

Section 33 of NEMA provides for private prosecution. Any person may in the public
interest, or in the interest of the protection of the environment, institute and conduct a
prosecution in respect of any breach or threatened breach of any duty, other than a public
duty resting on an organ of state, in any national or provincial legislation or municipal
bylaw, or any regulation, licence, permission or authorisation issued in terms of such
legislation, where that duty is concerned with the protection of the environment and the
breach of that duty is an offence.141 The procedure is different from the procedure con-
templated by the Criminal Procedure Act,142 because it is not necessary for the Director
of Public Prosecutions to certify that the matter will not be prosecuted and it is not neces-
sary for security for costs to be lodged. All that is necessary in terms of s 33 is that the
individual prosecuting must notify the public prosecutor in writing that he or she intends
to launch a private prosecution and, if there is no response within 28 days, the private
prosecution may be launched.143
It is unlikely, in my view, that the average member of the public who is concerned
about environmental issues and breach of environmental legislation would make use of
the private prosecution provision, since his or her goals would probably be more than
adequately served by interdict proceedings.
On the other hand, this provision can be used by environmental agencies to bring
‘in-house’ prosecutions, thereby ensuring that the persons involved in both investigation
and prosecution of the offence have experience in the field. Rather than for environmental
agencies (for example, the Department of Water Affairs) to refer offences to the Director
of Public Prosecutions for prosecution, the process would be far less cumbersome, less
time-consuming, and, probably, more likely to result in a successful conviction if it were
carried out ‘in-house’, due to the experience of the persons involved in that particular
138
2007 (6) SA 65 (C).
139
Ibid at 87A.
140
At least in reported judgments.
141
Section 33(1).
142
Act 51 of 1977, ss 9–17.
143
Section 33(2).

legislation and its application. This may well have resource implications but it is an idea
worth considering.
3.3 Implementation by individuals outside the courts

Litigation is not, of course, the only avenue available to individuals seeking to uphold
environmental law. It must be borne in mind that litigation is almost invariably a last
resort after other possible avenues of resolving the problem have failed. What other
avenues are available?
A relatively common remedy is that of appeal. There is no automatic right of appeal
against administrative decision-making, but it must be provided for by legislation. There
is no provision in South African environmental law for appeal to the courts, but where
a right of appeal is provided for, it is either to the Minister or to another administrative
body. For example, NEMA provides, inter alia, that any affected person may appeal to
the Minister against a decision taken by any person acting under a power delegated by
the Minister under this Act or a specific environmental management Act.144 An example
of an administrative body which hears appeals is provided by the National Water Act.145
This Act provides for a Water Tribunal that hears appeals against various specified deci-
sions taken in terms of that Act.146
The right to appeal has the benefit over judicial review that it concerns the merits of
the decision rather than simply the procedural regularity thereof. However, the right of
appeal has rather limited potential for environmentalists in that, in practice, it would
most often be a person of the sort who has been refused authorisation to do something
potentially detrimental to the environment who would have the right to appeal. This is
not, however, the case in respect of environmental authorisations (those following the
EIA process), as interested and affected parties have the right to appeal.147
Another drawback of the type of appeal provided for by environmental legislation is
that the appeal does not lie to an independent body, but often to an official who is higher
in the hierarchy of that particular department. There is no independent administrative
appeals tribunal in South Africa.148
Another way in which individuals may seek to put matters right is by way of one of the
forms of alternative dispute resolution (ADR). ADR has recently become very popular
in South Africa because it does not require the same strict procedural formalities as
litigation, and it is cheaper. Types of ADR procedures which would lend themselves to
the settlement of disputes in the environmental arena are negotiation, mediation (where a
third party mediates between the disputants in an attempt to bring them to compromise)
and arbitration (where a third party makes a decision which binds the disputants).149
144
Section 43(1).
145
Act 36 of 1998.
146
Section 148.
147
See Chapter 7 of the EIA regulations in GN R385 in GG 28753 of 21 April 2006.
148
There is such a body (the Administrative Appeals Tribunal) in Australia: see Baxter (n 92) at 268ff.
149
For a thorough discussion of ADR in the environmental sphere (which has become well established in the
United States), see Rabie (n 25) at 146–54. See also A Rycroft, D Scott & B Robertson ‘Environmental
mediation: A case study on conflict over marine resources’ (1998) 5 SAJELP 87.

9
Environmental Justice:
A South African Perspective
1. Introduction
Environmental justice can be seen as one of several principles of environmental law.1
It is appropriate to single it out for special discussion in its own chapter in this book
because it is so important in the South African context. Concern with the environment
in South Africa has often been seen as a middle-class interest that is almost exclusively
a concern of white people. This perception (even if fallacious) is dangerous for obvious
reasons. Highlighting environmental justice as a major thrust of environmental law in
South Africa will ensure that environmental concern is something that is perceived as
universally important.
The concern for environmental justice is a relatively recent development which has
received much attention particularly in the United States. It is seemingly, however, one of
those concepts which it is difficult to define and the term is often bandied about without
concern for what it really means.
This chapter will examine the meaning of the term ‘environmental justice’ with par-
ticular reference to what it means in the South African context.2 To this end, the environ-
mental justice debate in the USA will be discussed, followed by an examination of the
need for environmental justice in South Africa. This will inform the meaning of the term
for South Africa. Finally, we will consider the role of South African law in the achieve-
ment of environmental justice.
2. Environmental justice in the USA

It would appear that the most common understanding of ‘environmental justice’ is that it
is the positive opposite of ‘environmental racism’.3 Environmental racism encompasses
the view that people of colour (minorities in the USA) are exposed to a disproportionate
degree of environmental risks compared to whites, and that the reason for this is racism
and classism in the acts which cause such risks.4 This perception can be attributed, among
other things, to the siting of activities which bear environmental risks, the promulgation
1
2
This chapter is based on Michael Kidd ‘Environmental justice: A South African perspective’ in (1999)
Acta Juridica 142.
3
See Richard J Lazarus ‘Pursuing “environmental justice”: The distributional effects of environmental
protection’ (1992) 87 Northwestern University LR 787 at 790.
4
Vicki Been ‘Locally undesirable land uses in minority neighbourhoods: Disproportionate siting or market
dynamics?’ (1994) 103 Yale LJ 1383 at 1384.
292

Environmental Justice: A South African Perspective 293
and enforcement of environmental laws, and decisions as to the cleanup of polluted sites.5
There is a particular emphasis on the siting of locally undesirable land uses (LULUs),
such as waste disposal sites and industries emitting hazardous emissions, the view being
that LULUs are sited disproportionately in neighbourhoods which have, on average, a
higher percentage of racial minorities, and which are poorer than communities which do
not have LULUs.6 It was the siting of a hazardous waste site in Warren County, North
Carolina (with a majority African-American population), in the early 1980s, and local
opposition to this — which drew on the experience of civil rights activism — that is
widely heralded as the origin of the environmental justice movement.7 Following the
Warren County dispute, several studies have shown disparate impact in the siting of
LULUs: first, in 1983, the General Accounting Office (GAO) studied hazardous waste
landfill sites in eight south-eastern states and found that ‘blacks make up the majority of
the population in three of the four communities where landfills are located’.8 Moreover,
‘at least 26 percent of the population in all four communities have income below the
poverty level and most of this population is black’.9
A second study was undertaken by the United Church of Christ Commission for Racial
Justice (UCC) in 1987. Focusing on the location of hazardous waste sites throughout the
United States for the purpose of ascertaining whether they were sited disproportionately
in neighbourhoods of racial minorities, the report concluded that ‘although socio-eco-
nomic status appeared to play an important role in the location of commercial hazardous
waste facilities, race still proved to be more significant’.10
Robert Bullard, author of the well-known Invisible Houston11 and Dumping in Dixie:
Race, Class and Environmental Quality,12 found that ‘although African-Americans
made up only 28% of the Houston population in 1980, six of Houston’s eight incinera-
tors and fifteen of seventeen landfills were located in predominantly African-American
neighbourhoods’.13
5
One of the best-known environmental justice advocates, Robert Bullard, defines ‘environmental racism’ as
‘any policy, practice, or directive that, intentionally or unintentionally, differentially impacts or disadvan-
tages individuals, groups, or communities based on race or color. [It] … also refers to the exclusionary and
restrictive practices that limit participation by people of color in decison-making boards, commissions,
and staffs’ (Robert D Bullard ‘Environmental Equity: Examining the Evidence of Environmental Racism’
(Winter 1993) Land Use Forum 6, cited in Daniel Kevin ‘“Environmental racism” and locally undesirable
land uses: A critique of environmental justice theories and remedies’ (1997) 8 Villanova Environmental LJ
121 at 126.
6
Been (n 4) at 1384; Kevin (n 5) at 121.
7
See Eileen Maura McGurty ‘From NIMBY to civil rights: The origins of the environmental justice move-
ment’ (1997) 2 Environmental History 301.
8
United States General Accounting Office Siting of Hazardous Waste Landfills and their Correlation with
Racial and Economic Status of Surrounding Communities (1983) 2.
9
Ibid.
10
United Church of Christ Commission for Racial Justice Toxic Waste and Race in the United States (1987)
xiii.
11
(1987).
12
(1990).
13
Been (n 4) at 1395, citing Robert Bullard ‘Solid waste sites and the Black Houston community’ (1983) 53
Sociological Inquiry 273 at 279–83.

In the light of general concern about environmental justice (caused in part by the
studies outlined above), the Environmental Protection Agency (EPA) commissioned a
study into the bearing of environmental risks by minorities, and concluded that minori-
ties have disproportionately greater ‘observed and potential exposure’ to environmental
pollutants.14
Although these studies have shown that there is disproportionate siting of LULUs in
minority communities, there is a lack of clarity as to whether the LULUs were situated
where they were due to racism and classism in the siting process itself.15 As Been says,
‘the literature … sheds little light on whether the current distribution of LULUs resulted
from siting processes that had a disproportionate effect upon minorities and the poor,
or from market dynamics, or both’.16 Further investigation into some of the most-cited
studies showing disproportionate siting of LULUs is interesting yet fails to illuminate
the issue more substantially.17 On the other hand, it has recently been argued that LULU
siting may not be as disproportionate as is claimed18 and, even where there is dispropor-
tionality, it has also been suggested that, taking into account a variety of factors which
could influence the siting of LULUs, race was not a statistically significant cause of the
observed discrimination.19
If there is evidence to suggest that minorities and the poor bear more environmental
burdens than other Americans, why is it necessary to show discrimination in the siting
process? The reason for this is that there are possible legal challenges to siting decisions
based on racial discrimination, although these are not without problems. Before examin-
ing the legal mechanisms which could be used, it is important to note that discrimination
on the basis of income (ie siting LULUs in poor neighbourhoods) would in all likeli-
hood not be unlawful (in the sense of being a violation of the US Constitution), since
the Supreme Court has not recognised poverty as a classification which contravenes the
equal protection of the Constitution.20
14
Environmental Equity Workgroup, Office of Policy, Planning and Evaluation, United States EPA Environ-
mental Equity: Reducing Risks for all Communities (June 1992).
15
Been (n 4) at 1385.
16
Ibid at 1397.
17
Been looked into both the GAO study and Bullard’s study and found that, as far as the former was con-
cerned, ‘the analysis … suggests that the siting process had a disproportionate effect on the poor and
people of colour’ yet ‘provides no support for the theory that the location of LULUs in poor or minority
communities is the result of the dynamics of the housing market’ (Been n 4 at 1400). As for as the Bul-
lard study, Been’s re-investigation revealed that the siting process did have a disproportionate impact
upon African-Americans, and that the analysis ‘provides considerable support for the theory that market
dynamics contribute to the disproportionate burden LULUs impose upon people of color and the poor’
(ibid at 1405).
18
Kevin (n 5) n 3 at 133–7, citing Douglas A Anderton et al ‘Hazardous waste facilities: “Environmental
equity” issues in metropolitan areas’ (1994) 18 Evaluation Review 123.
19
Terence J Centner & Warren Kriesel ‘Toxic exposure and race: Establishing a case of discrimination
under American legal institutions’ Paper delivered at a Conference on Environmental Justice and Market
Mechanisms, Auckland, March 1998; Kevin (n 5) at 137–45.
20
San Antonio Independent School District v Rodriguez 411 US 1 (1973).

Where there is discrimination on the basis of race, however, there is possible relief
in the form of the Constitution or the Civil Rights Act. The Equal Protection Clause of
the Fourteenth Amendment of the US Constitution provides that no state shall deny any
person ‘the equal protection of the laws’. A violation of this clause requires discrimina-
tory intent or purposeful conduct employing race to dominate or oppress another.21
Disparate impacts alone are insufficient for the court to impose strict scrutiny22 unless
there is a clear pattern of impacts that affect one race more than another and that can-
not be explained on grounds other than race.23 In a number of cases, Equal Protection
claims have been rejected by courts on the basis of lack of discriminatory intent.24
In addition, Title VI of the Civil Rights Act of 1964 provides that ‘no person in the
United States shall, on the grounds of race, colour, or national origin … be subjected to
discrimination under any program or activity receiving Federal financial assistance’.25
As with the Constitutional provision, intentional discrimination against people of colour
would violate Title VI, but disproportionate impact in itself would probably not constitute
a violation.26 There are, however, some circumstances in which programmes receiving
federal assistance can be found to be in violation of Title VI where there is a disparate
impact but not necessarily discriminatory intent.27 Despite this, there is authority for the
view that Title VI does not prohibit actions solely on the basis that they have a dispropor-
tionate impact — it prohibits only those actions causing such impact without adequate
justification.28 Certain other civil rights statutes have been used in order to challenge
environmental racism, but these generally fail for the same reasons as those outlined
above.29
It seems clear from the analysis of possible judicial challenges against environmen-
tal racism that environmental justice advocates have a mountain to climb. What is also
apparent is that there is a problem with minorities and the poor bearing a disproportionate
amount of risk from environmental hazards, although this may not be to the extent that
21
Village of Arlington Heights v Metropolitan Housing Development Corp 429 US 252 (1977) at 264–5;
Washington v Davis 426 US 229 (1976) at 244–8; Orange Lake Assocs Inc v Kirkpatrick 21 F. 3d 1214 (2d
Cir. 1994) at 1226; Elston v Talladega County Board of Education 997 F. 2d 1394 (11th Cir. 1993) at 1406.
See Centner et al (n 19) at 6–7.
22
The term ‘strict scrutiny’ is used in circumstances where the court will carefully scrutinise the use of race
or national origin as a basis for the distribution of benefits or burdens by government authorities. Accord-
ing to Kevin (n 5) at 146, ‘unless the authority concerned can show that the classification is necessary to
advance a compelling governmental interest, and that the proposed action is narrowly tailored to further
that interest, the practice will be found unconstitutional’. See Adarand Constructors v Pena 115 S Ct 2097
(1995) at 2117.
23
Washington v Davis (supra) at 239 and 242, Personnel Administrator v Feeney 442 US 256 (1979) at 272.
24
Bean v Southwestern Waste Management Corp 482 F Supp 673 (SD Tex 1979); NAACP v Gorsuch 82–768-
CIV–5 (EDNC 10 August 1982) cited in Lazarus (n 3) at 832; East-Bibb Twiggs Neighborhood Ass’n v
Macon Bibb County Planning & Zoning Commission 896 F 2d 1264 (11th Cir 1989); R.I.S.E Inc v Kay 997
F 2d 573 (4th Cir 1992).
25
42 USC § 2000d.
26
Alexander v Choate 469 US 287 (1985) at 293; Goshen Road Environmental Action Team v United States
Dept of Agriculture 891 F Supp 1126 (EDNC 1995) at 1133.
27
The principle was established in Lau v Nichols 414 US 563 (1974) and Guardians Ass’n v Civil Service
Commission of the City of New York 463 US 582 (1983). See, for an example, Johnson v City of Arcadia,
Fla 450 F Supp 1363 (MD Fla 1978). See Kevin (n 5) at 150–1.
28
Coalition of Concerned Citizens Against I–670 v Damian 608 F Supp 110 (SD Ohio 1984) at 127.
29
See Kevin (n 5) at 152–156; Lazarus (n 3) at 839–42.

some commentators allege. Given that there is a problem and that the existing law does
not assist, there may well be a need for legislation, but this would require further research
into the problem.
Environmental justice is certainly taken seriously in the USA, as is evidenced by the
attention that was given to the issue by the Clinton Administration. President Clinton
promulgated an Executive Order that required each federal agency to make environ-
mental justice part of its mission by identifying and addressing the disproportionately
high and adverse human health or environmental effects of its programmes, policies and
activities on minority and low-income populations. In addition, each agency was required
to formulate an environmental justice strategy.30 Apart from this, however, there is no
legislation that addresses environmental justice, although there have been some mooted
innovations which have not come to fruition.31
This analysis of the environmental justice debate in the USA indicates that the focus is
largely anthropocentric — the well-being of people in respect of environmental hazards
is important. Although this is the main focus, environmental justice does entail more than
countering environmental racism. One of the most famous expositions of the meaning
of environmental justice was produced by the First National People of Color Environ-
mental Leadership Summit in 1991. At the summit, convened in Washington DC, com-
munity leaders involved in environmental issues and others met to ‘initiate a dialogue
between these … organisations and, even more significantly, to make a strong national
statement regarding the seriousness of the problems in the distribution of environmental
risks’.32 The summit produced a list containing principles of environmental justice, which
included several ‘general’ environmental concerns such as sustainability and protection
from exposure to hazardous substances, but also mentioned environmental policy free
from bias and discrimination, environmental self-determination and several other prin-
ciples which suggested unequal treatment of minorities in the environmental sphere.33
30
Executive Order No. 12 898, ‘Federal Actions to Address Environmental Justice in Minority and Low
Income Populations’ 59 Fed Reg 7 629 (1994). For further detail, see Kevin (n 5) at 128–9.
31
See Kevin (n 5) at 159.
32
Lazarus (n 3) at 790n12.
33
The full list of principles is:
‘1. Environmental justice affirms the sacredness of Mother Earth, ecological unity and the interdepen-
dence of all species, and the right to be free from ecological destruction.
2. Environmental justice demands that public policy be based on mutual respect and justice for all
peoples, free from any form of discrimination or bias.
3. Environmental justice mandates the right to ethical, balanced and responsible uses of land and
renewable resources in the interest of a sustainable planet for humans and other living things.
4. Environmental justice calls for universal protection from nuclear testing, extraction, production and
disposal of toxic/hazardous wastes and poisons and nuclear testing that threaten the fundamental
right to clean air, land, water, and food.
5. Environmental justice affirms the fundamental right to political, economic, cultural and environ-
mental self-determination of all peoples.
6. Environmental justice demands the cessation of the production of all toxins, hazardous wastes, and
radioactive materials, and that all past and current producers be held strictly accountable to the
people for detoxification and containment at the point of production.
7. Environmental justice demands the right to participate as equal partners at every level of decision-
making, including needs assessment, planning, implementation, enforcement and evaluation.
8. Environmental justice affirms the right of all workers to a safe and healthy work environment with-
out being forced to choose between an unsafe livelihood and unemployment. It also affirms the right
of those who work at home to be free from environmental hazards.

This indicates a number of environmental justice issues which have not received the same
attention as that of disproportionate siting of LULUs.
The discussion to this point has focused on environmental justice issues on what could
be called the micro level. The principles of the First National People of Color Environ-
mental Leadership Summit raise (although not explicitly) a further dimension of the envi-
ronmental justice discourse — the international or macro level. Environmental justice is
a point of concern internationally for a variety of reasons, many of which are notorious.
The passage of hazardous pollutants (often toxic waste) from northern countries to lesser-
developed southern hemisphere countries, and the destruction of southern hemisphere
rainforests in order to cater for northern needs are two of the most prominent examples.
The impact of such practices on people in the less-developed nations is obvious, but
there are other aspects of north-south international environmental relations that are less
prominent but also harmful to southern developing countries. One such example is the
often paternalistic attitude of northern hemisphere environmental groups to environmen-
tal problems in the south, often ignoring the needs and interests of locals in the quest to
serve their own agendas.34 The fierce opposition by several northern conservation groups
to the reopening of the ivory trade in the face of strong support by particularly southern
African countries is an illustration of this type of attitude. So whereas environmental
justice on a micro-level (using the USA as an example) is concerned with the relationship
between environmental issues and race, on the international level it is the North-South
9. Environmental justice protects the right of victims of environmental injustice to receive full com-
pensation and reparations for damages as well as quality health care.
10. Environmental justice considers governmental acts of environmental injustice a violation of inter-
national law, the Universal Declaration of Human Rights, and the United Nations Convention on
Genocide.
11. Environmental justice must recognise a special legal and natural relationship of Native Peoples to
the US government through treaties, agreements, compacts, and covenants affirming sovereignty
and self-determination.
12. Environmental justice affirms the need for urban and rural ecological policies to clean up and
rebuild our cities and rural areas in balance with nature, honoring the cultural integrity of all our
communities, and provided fair access for all to the full range of resources.
13. Environmental justice calls for the strict enforcement of principles of informed consent, and a halt
to the testing of experimental reproductive and medical procedures and vaccinations on people of
color.
14. Environmental justice opposes the destructive operations of multi-national corporations.
15. Environmental justice opposes military occupation, repression and exploitation of lands, peoples
and cultures, and other life forms.
16. Environmental justice calls for the education of present and future generations which emphasises
social and environmental issues, based on our experience and an appreciation of our diverse cultural
perspectives.
17. Environmental justice requires that we, as individuals, make personal and consumer choices to
consume as little of Mother Earth’s resources and to produce as little waste as possible; and make
the conscious decision to challenge and reprioritise our lifestyles to insure the health of the natural
world for present and future generations.’
Proceedings to the First National People of Color Environmental Leadership Summit held on October
24–27, 1991, in Washington DC.
34
See Chris Kiefer & Medea Benjamin ‘Solidarity with the Third World: Building an international envi-
ronmental-justice movement’ in Richard Hofrichter (ed) Toxic Struggles: The Theory and Practice of
Environmental Justice (1993) 226 at 234, where they say that there is a widely held belief in the South that
‘Northern groups are more concerned about saving tropical rain forests than saving their own forests, or
more concerned about overpopulation in the South than overconsumption in the North’.

relationship (which certainly is not divorced from the question of racial discrimination)
which is under the spotlight.
This examination of the meaning and scope of environmental justice in the country
where the notion originated will be instructive in considering what environmental justice
means in the South African context. Before doing so, however, it will be illuminating to
explore the extent of environmental injustice or environmental racism in South Africa in
order to contextualise the notion of environmental justice for this country.
3. Environmental injustice in South Africa

South Africa is a country with a population of approximately 47,9 million,35 80 percent
of whom are African, while 9 percent are white.36 The environmental justice problems
found in South Africa, therefore, are substantially different from those experienced in
the United States, since it is the majority which suffers injustice, rather than the minor-
ity. However, economic disempowerment of people of colour in the United States is an
important theme in the environmental justice debate and this is the case in South Africa
too: although political power has now been transferred from the minority to a new legisla-
ture elected on the basis of a universal franchise, the minority still controls the country’s
wealth.
If one accepts for now that the concept of justice is concerned with the distribution of
benefits and burdens in a society, there are a number of statistics which can be cited to
illustrate the extent of the injustice suffered by Africans in South Africa. South Africa
has a population of approximately 50 million, almost 40 million of whom are black Afri-
can.37 In 2006, approximately 35 percent of individuals were living on an income below
$2.50 per day.38 South Africa’s Gini coefficient, which measures inequality between rich
and poor, and which varies between 0 for completely equal distribution of income to
1 for highly unequal distribution, is between 0.67 and 0.73, amongst the highest in the
world.39 The unemployment rate is 25.3 percent, and this rate is increasing.40 The highest
unemployment is suffered by black Africans at 29.5 percent.41
While virtually all urban white households have piped water, adequate sanitation
and electricity, many Africans do not have these facilities, although the situation does
appear to be improving. According to recent statistics, 6,6 percent of the population have
a bucket toilet or no sanitation, 82,6 percent are connected to mains electricity, and 83,3
percent of households have piped water.42 According to the Second United Nations World
Water Development Report Water, A Shared Responsibility:43
35
According to Statistics South Africa Statistical Release PO302: Mid-year population estimates 2007.
36
For the purposes of this paper, the term ‘African’ will be used to denote people previously described in
South Africa’s racial classification as ‘Black’, whereas ‘black’ will be used as an umbrella term including
Africans, people of Asian extraction and so-called ‘coloured’ people.
37
Statistics South Africa Mid-year Population Estimates, South Africa (2010).
38
Republic of South Africa Millennium Development Goals Country Report (2010) at 24.
39
Ibid at 25.
40
Statistics South Africa Quarterly Labour Force Survey Second quarter, 2010 at vi.
41
Ibid at xii.
42
Statistics South Africa General Household Survey 2009 (July 2010). These figures have improved from the
2002 figures of 13.2%, 76.1% and 66.1% respectively.
43
UNESCO World Water Development Report Water, A Shared Responsibility (2006).

59 percent of all schools (over 16,000) and clinics (over 2,500) lack access to acceptable sanita-
tion facilities, while 27 percent of all schools (over 7,500) and 48 percent of all clinics (over 2,000)
lack access to safe water supply. Water-related epidemics and diseases such as diarrhoea, chol-
era, dysentery, hepatitis and schistosomiasis occur in South Africa. In 2004, there were 2,780
cholera infections with 35 fatalities and 9,503 hepatitis A infections with 49 fatalities. Malaria
is also a common disease; between 2000 and 2004, there were 77,854 reported incidences of
malarial infection, 875 of which ended with fatality. Each year, some 2,5 million people fall ill
with bilharzia (schistosomiasis), of whom about 10 percent are ‘severely infected’, although few
die of the disease. Schistosomiasis infections are highest (up to 70 percent) amongst children
living in lower-lying areas of Limpopo Province, Mpumalanga and KwaZulu-Natal. Infections
of shigella dysenteriae vary significantly; there was a total of 894 cases recorded in 2004. Diar-
rhoea is a result of various types of bacteriological, viral and parasitic infections, affecting
more than 3 million patients each year and causing up to 3 percent of annual deaths (over 15,000
deaths), of which not all are directly related to water.44
What these figures reveal is that millions of Africans have no jobs, no formal housing
and no access to electricity, water or sanitation. Many urban dwellers, although better
off as far as employment goes, live in filthy surroundings where disease is rife. Millions
of rural Africans, on the other hand, have to live on marginal land due to the previous
government’s forcing too many people on to too little land. As Max Sisulu, a representa-
tive of the African National Congress, stated, ‘widespread overgrazing, soil erosion and
serious land degradation in the so-called “homelands” constitute the inevitable destruc-
tive consequences of apartheid’.45
In addition to the woes outlined above, many South Africans of colour live in polluted
environments with little or no prospect of moving. Although there have been no studies
of the type carried out in the United States, which indicate the disproportionate siting of
locally undesirable land uses in or close to minority residential areas,46 it would appear
that there is a similar problem in South Africa. The problem in South Africa, however, is
caused not only by waste sites and polluting industries, but often by the circumstances of
the inhabitants of the African townships. Owing to the lack of electricity in many African
homes, coal and wood are frequently burned for cooking and to provide heat. If Soweto is
used as an example, there is significant smoke pollution due to the burning of coal,47 and
according to ESKOM, pollution levels in Soweto are 2,5 times higher than anywhere else in
South Africa. Medical studies show that Soweto’s children suffer from more asthma and chest
colds, and take longer to recover from respiratory diseases, than do youngsters elsewhere in the
country.48
Over and above this problem, one also finds frequent examples of African residential
areas in close proximity to industrial areas. One of the principles underlying the applica-
tion of the Group Areas legislation was that black areas should be located as close as
44
Ibid at 503.
45
Quoted in Jacklyn Cock & Eddie Koch (eds) Going Green: People, Politics and the Environment in South
Africa (1991) at 13.
46
See studies cited in previous section.
47
JG Petrie, YM Burns & W Bray ‘Air pollution’ in RF Fuggle & MA Rabie (eds) Environmental Manage-
ment in South Africa (1992) 417 at 429.
48
Cock & Koch (n 45) at 4.

possible to work centres, in order to minimise transport costs for the black workers.49
Even though this was not often fully realised in practice, there are many instances where
this did happen, resulting in blacks having to suffer from the effects of living in proxim-
ity to polluting industries. In the Durban South area, for example, one finds what has been
referred to as ‘a sad case of unplanned urban development allowing polluting industrial
development and high density residential development to occur side by side’,50 where:
[t]he residential area finds itself on the doorstep of industry on every side. There are two giant
oil refineries on either side, a massive paper mill, a chromium processing plant, an airport and
a multitude of chemical industries … Many houses border on the factories directly and some
families live only 20m from the oil refineries.51
As far as waste disposal sites are concerned, there is no evidence of the type gathered in
the US, but several of the more high-profile waste sites are situated in close proximity
to black residential areas. A disposal site at Umlazi just south of Durban had its licence
revoked after years of pressure from its black neighbours. A proposed hazardous waste
site at Chloorkop, a mere 400 metres from a black settlement, was halted because of a
lack of consultation with neighbours.52 These are but two examples of many sites which
are in close proximity to black residential areas.
Africans, because they form the majority of the ‘blue collar’ workforce, also bear the
brunt of any adverse environmental circumstances in the workplace. The most notorious
example was Thor Chemicals, where workers were exposed to harmful levels of mercury,
and two of them died of mercury poisoning.
Environmental conservation in South Africa has also often led to racial inequity. Many
rural Africans were the victims of forced removals from areas which were to become
protected areas (national parks), and this is a particularly thorny issue that now faces
those who have to decide on land restoration claims. Another example is that successful
environmental opposition to development in areas such as St Lucia and Saldanha has
jeopardised job creation in these areas, a benefit which would have been enjoyed mainly
by blacks.53
Not only were blacks often removed from areas which became protected areas, but
were then prohibited from using the protected areas in line with apartheid rules. Access
to these and other natural resources has frequently been inequitable. Few blacks have ben-
efited directly from South Africa’s mineral wealth. Another example is marine resources,
where quotas for the exploitation of marine resources were previously allocated largely to
industrial concerns to the detriment of subsistence fishermen, mainly blacks.
What is clear is that the litany of environmental ills suffered by many South Africans
is inextricably tied up with their socio-economic status. Any attempts to redress the
situation, therefore, cannot be divorced from the quest for social justice in South Africa.
49
Urban Foundation Urban Debate 2010: Policies for a New Urban Future. Tackling Group Areas (1990) at
4.
50
Ann Eveleth ‘Engen the biggest polluter in Durban’ 5 May 1995 Weekly Mail & Guardian. See also S Peek
‘Doublespeak in Durban: Mondi, waste management, and the struggles of the South Durban Community
Environmental Alliance’ in David A McDonald (ed) Environmental Justice in South Africa (2002) 202.
51
Ibid.
52
Victor Munnik ‘The battle for Chloorkop and the burden of toxic waste’ (1994) 16 New Ground 18.
53
See, for example, Eddie Koch ‘Greens versus the rainbow nation’ 22 December 1995 Weekly Mail &
Guardian.

Employment, housing, access to water and electricity and avoidance of the ill effects of
pollution are goals which are all interlinked.
What this examination indicates is that South Africa shares some common ground
with the American experience of environmental injustice, but the extent of the problems
in South Africa is noticeably more widespread. Another significant difference is that
many of the environmental ills suffered by black and poor people in South Africa are
clearly the result of racism in the past, whereas American environmental justice advo-
cates have battled (so far unsuccessfully, it seems) to establish racism in decisions which
lead to disparate effects. Moreover, it is not only environmental ills which are the legacy
of South Africa’s apartheid past, but also a myriad of other problems that often exacerbate
the environmental problems faced by blacks today.
This suggests, then, that the emphasis of the notion of environmental justice in South
Africa should be somewhat different from what it is in the USA. Even though the princi-
ples laid down by the First National People of Color Environmental Leadership Summit
are probably extensive enough to cover the South African situation, the most common
view of environmental justice in the USA is concerned with disparate effects of environ-
mental burdens and this view is inadequate for South Africa.
4. The meaning of environmental justice in South Africa

In attempting to find a conception of ‘environmental justice’ suitable for South Africa, it
will be useful to take the idea of sustainable development as a starting-point. ‘Sustainable
development’, which is now seen as underpinning international environmental law,54 was
originally defined by the World Commission on Environment and Development as ‘devel-
opment which meets the needs of the present without compromising the ability of future
generations to meet their own needs’.55 Two concepts are fundamentally tied to the idea
of sustainable development. The first is that the basic needs of humanity (food, clothing,
shelter and employment) must be met. The other is that ‘the limits to development are not
absolute but are imposed by present states of technology and social organisation and by
their impacts upon environmental resources and upon the biosphere’s ability to absorb
the effect of human activities’.56 It is the first aspect which is crucial for South Africa’s
people and for its environment and which should inform the meaning of ‘environmental
justice’ in South Africa. In this regard, Field has compellingly argued that sustainable
development has at its heart the idea of equity.57 Equity embraces not only the concepts
of inter- and intra-generational equity, but also includes the idea of meeting basic human
needs.58 Field argues, continuing in this vein, that the idea of equity underpinning sus-
tainable development includes notions of transformation and redress.59 Basic needs can-
not be met if there is not transformation — in the sense of addressing the ‘deep fault line
54
Phillipe Sands Principles of International Environmental Law (1995) at 48ff.
55
World Commission on Environment and Development Our Common Future (1987) at 43.
56
Our Common Future: A Reader’s Guide (1987) at 7.
57
Tracy-Lynn Field ‘Sustainable development versus environmentalism: Competing paradigms for the
South African EIA regime’ (2006) 123 SALJ 409 at 415, 419.
58
See the definition of sustainable development posited by the Brundtland Commission; Field (n 57) at 419.
59
Ibid at 416.

that divides human society between the rich and the poor’60 — or redress of the harm that
has already been caused, the cost of which is being borne unequally. This is particularly
apposite in South Africa at present.
The National Environmental Management Act (NEMA)61 revolves around the envi-
ronmental management principles in s 2, which provide that ‘environmental management
must place people and their needs at the forefront of its concern, and serve their physical,
psychological, developmental, cultural and social interests equitably’62 and ‘development
must be socially, environmentally and economically sustainable’.63 The principles include
specific reference to environmental justice: s 2(4)(c) provides that ‘environmental justice
must be pursued so that adverse environmental impacts shall not be distributed in such
a manner as to unfairly discriminate against any person, particularly vulnerable and
disadvantaged persons’.
With these guiding principles in mind, the following concept of environmental justice,
posited by Richard Hofrichter, is one which seems suitable for South Africa:
Environmental justice is about social transformation directed toward meeting human need and
enhancing the quality of life — economic equality, health care, shelter, human rights, species
preservation, and democracy — using resources sustainably. A central principle of environ-
mental justice stresses equal access to natural resources and the right to clean air and water,
adequate health care, affordable shelter, and a safe workplace.… Environmental problems there-
fore remain inseparable from other social injustices such as poverty, racism, sexism, unemploy-
ment, urban deterioration.…64
Another definition, posited in the South African context, is:

Environmental justice is about social transformation directed towards meeting basic human
needs and enhancing our quality of life — economic quality, health care, housing, human
rights, environmental protection, and democracy. In linking environmental and social justice
issues the environmental justice approach seeks to challenge the abuse of power which results in
poor people having to suffer the effects of environmental damage caused by the greed of others.
This includes workers and communities exposed to dangerous chemical pollution, and rural
communities without firewood, grazing and water. In recognizing that environmental damage
has the greatest impact upon poor people, the Environmental Justice Networking Forum seeks
to ensure the right of those most affected to participate at all levels of environmental decision-
making.65
Seeing that there is official recognition of environmental justice in the main South African
environmental statute, and that the principle is applicable to all decisions affecting the
environment,66 what devices can be used in order to meet environmental justice goals?
60
Ibid, quoting the Johannesburg Declaration on Sustainable Development (2002).
61
Act 107 of 1998.
62
Section 2(2).
63
Section 2(3).
64
Richard Hofrichter ‘Introduction’ in R Hofrichter (ed) Toxic Struggles: The Theory and Practice of Envi-
ronmental Justice (1993) New Society, Philadelphia at 4. This definition corresponds with the essence
of the Principles of Environmental Justice adopted by the First National People of Color Environmental
Leadership Summit (n 33).
65
Environmental Justice Networking Forum (1997) quoted in David A McDonald ‘What is environmental
justice?’ in McDonald (n 50).
66
See s 2(1) of NEMA, discussed above at 36ff.

5. The pursuit of environmental justice in South Africa

The term ‘environmental justice’ suggests that the obvious way of achieving environ-
mental justice is through legal means. As will be discussed below, there are certainly
legal mechanisms, both existing and currently mooted, that can assist in the pursuit of
environmental justice. This will probably be useful particularly in future situations of
actual or threatened environmental injustice. There is, however, clearly a major problem
of existing environmental injustice which needs redress and in this regard the law can
play at most a limited role. Probably the most important way of dealing with existing
environmental injustice in South Africa is through the government’s addressing infra-
structural deficiencies in areas such as access to water, sanitation, electricity and the
like — an endeavour in which the law is one of many mechanisms involved. Despite the
limited role that law can play, however, it is instructive to look at those legal mechanisms
that are available in the environmental justice sphere.
5.1 The environmental right in the Constitution

Section 24 of the Constitution of the Republic of South Africa, 1996 (the environmental
right), is of potential use to those suffering from environmental injustice. This is dis-
cussed in detail above.67
From the point of view of environmental justice, the environmental right could be
used to stop any state action or decision which threatens or harms the environment
so as to affect detrimentally any person’s health or well-being. This is a significantly
stronger weapon than the various methods available to environmental activists in the
United States, for example reliance on equality provisions in the Bill of Rights.68 Its major
advantage over relying on allegations of unequal treatment is that it does not require any
unequal treatment, only a threat or harm to health or well-being. This is far easier to
prove objectively than is discrimination.
The Bill of Rights, including the environmental right, applies to all law and is binding
on the legislature, the executive, the judiciary and all organs of state.69 So, as pointed out
above, if the state, in any of its forms, is responsible for an infringement or threatened
infringement of the environmental right, that right may be used in order to remedy the
situation. A situation may arise, however, where it is a person or entity which is not part
of the state that is responsible for an environmental injustice. Can the environmental right
help in this context? The Constitution provides that a provision of the Bill of Rights binds
a natural or juristic person if, and to the extent that, it is applicable, taking into account
the nature of the right and the nature of any duty imposed by the right.70 This provision
is rather vague and thus any suggestion of its scope is subject to some doubt, but, given
the nature of the right, and the fact that non-state entities are frequently responsible for
actions detrimental to the environment and people’s health, it is likely that the environ-
mental right would bind private and juristic persons as well as the state. Yet even if this
were not the case, most private action is carried out under some or other state authorisa-
67
See 37.
68
See, for example, Lazarus (n 3) at 828–42; Kevin (n 5) at 146–56.
69
Section 8(1) of the Constitution.
70
Section 8(2).

tion in any event (for example, permits), so private action detrimental to the environment
could be targeted indirectly through the authorising officer.
It is important to note that the environmental right is not absolute (as is the case with all
the rights in the Bill of Rights). All rights may be limited,71 so it is conceivable that there
may be a situation where a decision or action is an infringement of somebody’s environ-
mental right and yet it is justifiable in terms of the Constitution.72 For example, the siting
of a disposal site might be challenged on the grounds that it is a threat to the health or
well-being of neighbours, but the challenge could be defeated on the basis that the site is
the only suitable one taking into account factors such as geology and economics, bearing
in mind that it would serve the interests of large numbers of people.
5.2 Public participation in decision-making

It is vital that people have the opportunity to be heard in a meaningful manner before
decisions are taken which may lead to environmental injustice. This is recognised, both
explicitly and implicitly, in the NEMA principles. There are several principles regard-
ing public participation in environmental decision-making and related ideas such as
transparency:
●● Environmental management must be integrated, acknowledging that all elements of
the environment are linked and interrelated, and it must take into account the effects
of decisions on all aspects of the environment and all people in the environment by
pursuing the selection of the best practicable environmental option.73
●● The participation of all interested and affected parties in environmental governance
must be promoted, and all people must have the opportunity to develop the under-
standing, skills and capacity necessary for achieving equitable and effective partici-
pation, and participation by vulnerable and disadvantaged persons must be ensured.74
●● Decisions must take into account the interests, needs and values of all interested and
affected parties, and this includes recognising all forms of knowledge, including tra-
ditional and ordinary knowledge.75
●● Community well-being and empowerment must be promoted through environmen-
tal education, the raising of environmental awareness, the sharing of knowledge and
experience and other appropriate means.76
●● The social, economic and environmental impacts of activities, including disadvan-
tages and benefits, must be considered, assessed and evaluated, and decisions must be
appropriate in the light of such consideration and assessment.77
●● Decisions must be taken in an open and transparent manner, and access to informa-
tion must be provided in accordance with the law.78
71
72
Section 36.
73
Section 2(4)(b).
74
Section 2(4)(f ).
75
Section 2(4)(g).
76
Section 2(4)(h).
77
Section 2(4)(i).
78
Section 2(4)(k).

●● The environment is held in public trust for the people, the beneficial use of environ-
mental resources must serve the public interest and the environment must be pro-
tected as the people’s common heritage.79
Public participation in decision-making is particularly important in the case of the devel-
opment of LULUs. As Jaffe puts it:
If poor communities and people of communities of color are ill-equipped to bargain effectively
with developers, two problems result. First, some LULUs may be sited improperly because host
communities are unable to effectively force developers to internalise the social costs of their
projects. Second, even when it may be reasonable to site a facility in such a community, host
communities would bear significant costs without an opportunity to negotiate for compensa-
tory benefits. These market shortcomings point towards a limited role for the private sector in
addressing environmental justice issues.80
The EIA regulations under NEMA81 have extensive provision for public participation in
this decision-making process.82 With the increased role being played by non-governmen-
tal organisations such as the Environmental Justice Networking Forum and community-
based organisations in informing communities about threats to their environment and
about their rights in this regard, the public participation process envisaged in the regula-
tions ought to prevent situations where LULUs are situated in areas where people may
suffer undue hardship as a result. The market may suggest the siting of a LULU, but it
will not be sited there until the neighbours have had effective participation in the final
siting decision.
Public participation in environmental decision-making, however, will be ineffective
unless people have access to the information necessary for their role to be meaningful.
The Constitution assists in this regard.
5.3 Freedom of information

In terms of the Constitution, everyone has the right of access to any information held
by the state; and any information that is held by another person and is required for the
exercise or protection of any rights.83 A development process where interested parties
were not apprised of relevant information could conceivably be challenged on the basis of
infringement of this right. It would also be very useful in cases where people are already
living close to a LULU to ensure that the LULU is complying with the law and thereby
minimising any detrimental effects that the LULU would have on its neighbours.
What is particularly noteworthy about this right is that it is applicable not only against
the state but also against any other person. The right is given effect to by the Promotion
of Access to Information Act,84 discussion of which is beyond the scope of this book.
79
Section 2(4)(o).
80
Seth D Jaffe ‘The market’s response to environmental inequity: We have the solution; what’s the problem?’
(1995) 14 Virginia Environmental Law Journal 655 at 656.
81
82
See Chapter 6 of the regulations in GN R543 in GG 33306 of 18 June 2010.
83
Section 32(1) of the Constitution.
84
Act 2 of 2000.

Moreover, there are provisions in NEMA which provide for access to environmental
information.85
5.4 Environmental justice in the workplace

As pointed out earlier, one of the most notorious examples of environmental injustice in
South Africa was the Thor Chemicals incident where workers exposed to mercury were
poisoned. The safety of the work environment is explicitly recognised in NEMA. One of
its principles is that ‘the right of workers to refuse work that is harmful to human health
or the environment and to be informed of dangers must be respected and protected’.86
This is augmented by s 29, which provides protection for employees refusing to do
environmentally hazardous work.
South Africa has comprehensive worker safety legislation, the enforcement of which, it
is hoped, will be strengthened by increased vigilance as a result of the publicity attached
to the Thor Chemicals saga. The health and safety of workers ought to be taken seriously:
it has been indicated that an estimated 50 000 to 70 000 Americans are killed every year
by occupational disease, and in New York State, occupational disease has been estimated
to be the fourth leading cause of death.87 With the increase in industrial processes likely
to be seen if the government’s growth strategy is to be successful, South Africa has cause to
bear these figures in mind.
5.5 Environmental protection versus employment

Green activists have been strongly criticised by majority-black communities in several
instances for seemingly putting environmental interests above the interests of locals in
improving their circumstances, particularly their job opportunities. St Lucia and Sal-
danha are two examples.88 The need for environmental policy and institutional and legal
frameworks to take account of the need to protect and create employment is also seen as
a component of environmental justice. It is clear that this is a vital consideration since
joblessness and poverty lead to environmental degradation, yet at the same time sustain-
ability requires decisions about employment creation and protection to be taken in a way
that is sensitive to the environment. In the USA there is a perception that environmental
groups are insensitive to the situation of minorities,89 and it is important that South Afri-
cans interested in conservation and environmental protection do not fall into a similar
trap. As an American environmental justice activist is reported to have said, ‘if you’re
only concerned with clean streams and whales, then that limited view of environmental-
ism smacks people of color in the face …’.90
85
86
Section 2(4)(j).
87
Robert Abrams ‘The maturing discipline of environmental prosecution’ (1991) 16 Columbia Journal of
Environmental Law 279 at 284.
88
See above, 300.
89
See Lazarus (n 3) at 850–2.
90
Ibid at 825, quoting Safir Ahmed ‘Building a rainbow coalition’ 6–12 Nov 1991 Riverfront Times, in turn
quoting a delegate at the First National People of Color Environmental Leadership Summit.

6. Conclusion
It is clear that environmental justice is a critical consideration for environmental manage-
ment in South Africa both now and in the future. The extent of environmental injustice
in South Africa is such that it will take a major effort to redress many of these problems.
Although the law has a limited role to play in addressing existing injustice, there are
several legal devices which can be used to counter instances of environmental injustice
in the future. South Africa has a challenging task in meeting the twin needs of economic
and social development as well as sustainable environmental management simultane-
ously. It is in this context that sustainable development will truly be put to the test. It is
hoped that our government and people can meet the challenge.

10
South Africa’s Position on
Climate Change
1
1. Introduction
South Africa is a significant carbon emitter and has a role in setting an example
amongst developing countries, especially African countries. South Africa, therefore, is
an important player in the climate change arena.2 This chapter examines South Africa’s
position on climate change, with a view to ascertaining whether the official pronounce-
ments are backed up by appropriate action.
2. Context: South Africa’s greenhouse gas emissions profile

South Africa’s economy is energy-intensive and largely fossil-fuel powered.3 The most
recent greenhouse gas (GHG) inventory in South Africa is for 2000, reviewed in 2009.4
In 2000, South Africa’s total GHG emissions amounted to 437,3 million tones CO2e.5 The
principal contributors to this amount were energy supply and consumption (78.9 percent),
industrial processes (14,1 percent), agriculture (4,9 percent) and waste (2,1 percent).6 If
disaggregated by gas, emissions are made up of 76,6 percent carbon dioxide (CO2), 17,5
percent methane (CH4) and 5,5 percent nitrous oxide (N2O).7
1
This chapter is based on Michael Kidd ‘South Africa’s position on climate change: Fiddling while the
Earth burns?’ (2010) International Law-making and Diplomacy Review (forthcoming).
2
See Fang Rong ‘Understanding developing country stances on post–2012 climate change negotiations:
Comparative analysis of Brazil, China, India, Mexico, and South Africa’ (2010) 38 Energy Policy
4582.
3
Department of Environmental Affairs National Climate Change Response Green Paper (2010) at 4 (here-
after referred to as Green Paper). The Green Paper appeared in GN 1083 in GG 33801 of 25 November
2010.
4
Department of Environmental Affairs and Tourism (DEAT) Greenhouse Gas Inventory 1990 to 2000
(May 2009) available at http://www.pmg.org.za/files/docs/090812greenhouseinventory.pdf (accessed 8
December 2010).
5
Ibid at iii. This figure does not include emissions or sinks relating to agriculture, land use change and
forestry activities. CO2e denotes carbon dioxide equivalent.
6
Ibid.
7
Calculated from figures provided in DEAT (n 4) at 87. Cf Thapelo Letete, Mondli Guma & Andrew
Marquard Information on Climate Change in South Africa: Greenhouse Gas Emissions and Mitigation
Options (2010).
308

South Africa’s Position on Climate Change 309
Viewed comparatively, Table 1 sets out South Africa’s comparative rank by emis-
sions for different categories, by grand total and per capita. Figure 1 represents South
Africa’s comparative per capita emissions ranking for 2002 for energy and cement
production (ie excluding net emissions from land use, land use change and forestry
activities [LULUCF]) compared to selected countries and categories of countries.
Figure 2 represents a comparison of emissions intensity, which divides emissions by
economic output ($ of GDP), with GDP measured in international dollars on a power
purchasing parity basis. This indicates that South Africa is a very inefficient user of
energy.
These statistics demonstrate that South Africa is a significant contributor to GHG
emissions internationally. According to the World Resources Institute’s analysis of the
GHG emissions data for 2000, South Africa is ranked 19th in the top GHG emitting
countries, the only African country in the top 25.8
Table 1: South Africa’s GHG emissions world ranking by indicator9
Rank by emissions Rank by emissions per

capita
Cumulative emissions 14 46
1950–2000, only energy
CO2
Cumulative emissions 21 63
1950–2000, CO2 energy
and LULUCF
Annual emissions 2000, 14 39

CO2 only, no LULUCF, i.e.
energy CO2

CO2 only, with LULUCF
Annual emissions 2000, six 19 47

gases, no LULUCF
Annual emissions 2000, six 21 63

gases, with LULUCF

three gases, no LULUCF

three gases, with LULUCF
8
Kevin A Baumert, Timothy Herzog & Jonathan Pershing Navigating the Numbers: Greenhouse Gas Data
and International Climate Change Policy (2005) at 10.
9
Table sourced from Letete et al (n 7) at 15.

700
600
ton CO2 per capita
500
400
300
200
100
0
USA Annex 1 European South Africa World China non-Annex Brasil Sub-Saharan India
Union (29) 1 Africa
Country/Region
Figure 1: Comparison of 2002 CO2 emissions per GDPppp (2000 US$) from energy
and cement production10
800
700
600
tons CO2/mill int’l $
500
400
300
200
100
0
South Africa Brazil China India OECD World
Figure 2: Comparative Emissions Intensity11
3. South African policy relating to climate change

As indicated above, the major contributor to South Africa’s GHG emissions is the energy
sector. In the light of this, discussion of the relevant policy must not only focus on policy
10
Ibid at 14. GDPppp is purchasing-power equivalent Gross Domestic Product. Note that ‘Annex 1’ countries
are those that appear in Annex 1 of the UNFCCC — essentially the ‘developed’ countries.
11
Figure sourced from Department of Environmental Affairs and Tourism Long Term Mitigation Scenarios:
Strategic Options for South Africa (2007) at 3.

that is directly related to climate change, but also on the policy documents which focus
more on energy. I will discuss the relevant policy documents in chronological order of
their publication.12
3.1 White Paper on the Energy Policy of the Republic of South Africa 1998
The main objective of the White Paper was to integrate various energy-related policy
processes and to provide policy stability for energy suppliers, investors and consumers.13
Although the White Paper does expressly consider the issue of climate change in the
context of the United Nations Framework Convention on Climate Change (UNFCCC)
and the Kyoto Protocol, the approach adopted is to ‘monitor’14 international developments
and to plan for possible ‘pressure on South Africa to take greater cognisance of its global
environmental impacts [which] will undoubtedly increase’.15 Despite cognisance being
taken of the climate change imperatives (likely in 1998 to have been far lower-profile than
in 2010), the White Paper indicates that:
to fulfil the national energy policy of making clean, affordable and appropriate energy available
to all sectors of the population, a balanced least-cost mix of energy supply is promoted. Coal
will therefore dominate other energy sources in South Africa for many years to come.16
Nevertheless, the White Paper also commits itself to:

a ‘no regrets’ approach in the energy sector with regard to the potential global environmental
impacts of energy activities. A ‘no-regrets’ option is defined as that which decreases and mini-
mises environmental impacts commensurate with cost effectiveness and positive cash flow.17
Overall, climate change is recognised in the White Paper as one of many factors to take
into account in the development of energy policy, but it clearly does not attach to it the
degree of importance required today.
3.2 Integrated energy plan 2003

The integrated energy plan is aimed at ensuring that supply meets projected demand.
Various scenarios are considered, which do take into account climate change consider-
ations.18 The dominant consideration, however, is clearly cost. In its conclusions, the plan
states that:
coal remains the dominant primary energy source over the planning horizon. In all circum-
stances where cost is the major driver, coal generally emerges as the least expensive option.
12
With the exception of the last two documents: I deal with the Climate Change Green Paper last because it
is effectively the ‘last word’ on climate change policy in South Africa at the time of writing and it segues
neatly into the next section on legislation.
13
Department of Minerals and Energy White Paper on the Energy Policy of the Republic of South Africa
(December 1998) at 17.
14
Ibid at 93.
15
Ibid at 92.
16
Ibid.
17
Ibid at 93.
18
Department of Minerals and Energy Integrated Energy Plan for the Republic of South Africa (March
2003) at 20.

The use of such coal energy presupposes the increased use of clean coal technologies. Moreo-
ver, coal remains the largest indigenous energy resource currently available.19
Clearly, the ‘cost’ referred to does not take into account the myriad externalities relating
to the mining and use of coal. To be fair, the plan does recognise a role to be played by
renewable energy and indicates that the ‘current target for renewable energy is 10 000
GWhr by the year 2012’.20 For the year 2000, South Africa’s primary energy supply was
approximately 4 782 PJ21 and final energy demand was 2 363 PJ for the same year.22 The
target for renewable energy, therefore, is 0,75 per cent of the supply and 1.5 per cent of
demand at the 2000 levels. This indicates the relatively peripheral role to be played by
renewable energy, especially if the 2000 levels of supply and demand will not remain at
those levels, but will increase significantly.
3.3 White Paper on the Renewable Energy Policy for the Republic of
South Africa 2003
This follows on from the 1998 White Paper, as that document pledged support for renew-
able energy. This was given added impetus by the Johannesburg Plan of Action of 2002,
which included the following goals:
Diversify energy supply by developing advanced, cleaner, more efficient, affordable and cost-
effective energy technologies, including fossil fuel technologies and renewable energy tech-
nologies,… [and]
With a sense of urgency, substantially increase the global share of renewable energy sources
with the objective of increasing its contribution to total energy supply, recognizing the role of
national and voluntary regional targets.23
According to the White Paper, it sets out ‘Government’s vision, policy principles, strategic
goals and objectives for promoting and implementing renewable energy in South Africa’.24
It has two further goals: to inform the public and the international community of the
Government’s goals, and how the Government intends to achieve them, and to inform
Government agencies and Organs of State of these goals, and their roles in achieving
them.25
The overall vision of the White Paper is to increase the contribution of renewable
energy to the energy mix, ‘thus contributing to sustainable development and environ-
mental conservation’.26 This is an admirable objective, but the vision is somewhat limited.
The White Paper sets a rather conservative target:
19
Ibid at 25.
20
Ibid. By way of comparison, according to International Energy Agency data, in 2008 Denmark produced
58 426 GWh from renewable sources and Mexico 47 303 GWh: http://www.iea.org/stats/renewdata.
asp?COUNTRY_CODE=DK and http://www.iea.org/stats/renewdata.asp?COUNTRY_CODE=MX respec-
tively (accessed 8 December 2010).
21
Ibid at 6. PJ denotes Peta Joules, which is 1015 Joules.
22
Ibid at 7.
23
Quoted in Department of Minerals and Energy White Paper on the Renewable Energy Policy of the Repub-
lic of South Africa (November 2003) at 1.
24
Ibid.
25
Ibid.
26
Ibid.

10 000 GWh (0.8 Mtoe) renewable energy contribution to final energy consumption by 2013,
to be produced mainly from biomass, wind, solar and small-scale hydro. The renewable energy
is to be utilised for power generation and non-electric technologies such as solar water heating
and bio-fuels. This is approximately 4% (1667 MW) of the estimated electricity demand (41539
MW) by 2013. This is equivalent to replacing two (2x 660 MW) units of Eskom’s combined coal
fired power stations.27
One shortcoming of the White Paper, in my view, is that renewable energy is seen in
the ‘big picture’ largely as an energy source to feed ‘into the grid’, rather than a source
that can power individual consumers’ needs. This is despite the fact that solar power, for
example, is discussed in the document as being appropriate for use by individuals. It is
said that ‘South Africa experiences some of the highest levels of solar radiation in the
world’28 and that average daily solar radiation in South Africa varies between 4.5 and
6.5 kWh/m2 (16 and 23 MJ/m2), compared to about 3.6 kWh/m2 for parts of the United
States and about 2.5 kWh/m2 for Europe and the United Kingdom.29 These facts suggest
far greater emphasis should be given to use of solar energy for domestic power generation
(not just water heating), given that solar power is used extensively in Western Europe
(with far lower solar radiation) for domestic generation, to such an extent that many users
sell power back to the grid.
3.4 A National Climate Change Response Strategy for South Africa 2004
This policy document30 contains strategies:
designed to address issues that have been identified as priorities for dealing with climate change
in South Africa. Whereas the national strategy must recognise international realities, including
the growing pressure for quantified commitments of some kind by developing countries, includ-
ing South Africa, it must be seen within the context of the present economic realities of the
country and the inequitable distribution of global wealth. Thus the point of departure reflected
in this strategy is achievement of national and sustainable development objectives, whilst simul-
taneously responding to climate change.31
The document contains objectives and ‘interventions’ intended to meet those objectives,
as follows:32
●● Create a synergy between national government objectives, sustainable development
and climate change.
●● Enable the relevant national government departments to address climate change
issues in South Africa.
27
Ibid at 25. Eskom is South Africa’s electricity company.
28
Ibid at 20.
29
Ibid, citing G Stassen Towards a Renewable Energy Strategy for South Africa PhD Thesis, University of
Pretoria (1996).
30
Department of Environmental Affairs and Tourism A National Climate Change Response Strategy for
South Africa (September 2004).
31
At iii.
32
These objectives and interventions are taken verbatim from the document. The interventions are the sub-
bullet points.

■■ Ensure that the relevant national government directorates and sub-directorates

have the capacity to carry out their assigned functions regarding climate change
response, including the CDM [clean development mechanisms].
■■ Establish procedures for CDM projects.
●● Offset South Africa’s vulnerability to climate change.
■■ Extension of health protection and health promotion measures.
■■ Water resource management and contingency planning.
■■ Adaptation of rangeland practices.
■■ Adaptation in agriculture.
■■ Changes in forestry practices.
■■ Protecting plant biodiversity.
■■ Protection of animal biodiversity.
■■ Protecting marine biodiversity.
■■ Formulate actions that will offset the economic vulnerability of South Africa to
climate change response measures.
●● Create a national greenhouse gas mitigation plan that furthers the process of sustain-
able development in South Africa in the light of CDM, technology transfer, donor
funding and capacity building opportunities.
■■ The efforts of all stakeholders will be harnessed to achieve the objectives of the
Government’s White Paper on Renewable Energy (2003) and the Energy Effi-
ciency Strategy, promoting a sustainable development path through co-ordinated
government policy.
■■ Initiate the Government’s joint implementation strategy for the control of exhaust
emissions from road-going vehicles.
■■ Implement a transport sector mitigation programme through the National Depart-
ment of Transport, in conjunction with the Government’s energy efficiency strat-
egy (2003) and the joint implementation strategy for the control of exhaust emis-
sions from road-going vehicles.
■■ Develop and implement an appropriate coal-mining sector mitigation programme
through the Department of Minerals and Energy and the mining industry.
■■ Implement sustainable industrial development through co-ordinated policies,
strategies and incentives through the Department of Trade and Industry and the
various industry sectors.
■■ Reduce greenhouse gas emissions in the agricultural sector through the National
Department of Agriculture.
■■ Facilitate the establishment and extension of forest schemes through the Depart-
ment of Water Affairs and Forestry and the forestry industry.
■■ Optimise waste management practices to minimise the emissions of greenhouse
gases and develop a government position, through all relevant departments and
all spheres of government and industry, to implement a waste sector mitigation
programme.
●● Optimise South Africa’s potential to benefit from climate change mitigation by suit-
able international response and positioning.
■■ Maintain an appropriate attendance at UNFCCC and related meetings.
●● Ensure that government departments in all spheres work together on a co-operative
basis in dealing with climate change.

■■ Use the Government Committee for Climate Change to consolidate the govern-
ment position.
●● Ensure that South African environmental law provides for climate change issues.
■■ Use the ongoing law reform process to ensure that climate change issues are pro-
vided for in South African legislation.
●● Improve the level of education, training and awareness regarding climate change in
South Africa and capacitate the government and other sectors to deal with climate
change issues effectively to the benefit of the country.
■■ Accelerate the process of relevant education, training, awareness and capac-
ity building in South Africa to speed up the implementation of climate change
response.
●● Ensure that there is an effective and integrated programme of climate change research,
development and demonstration in South Africa.
■■ Set up a database of climate change-related research, development and demon-
stration projects and integrate the research, development and demonstration pro-
gramme for South and Southern Africa.
●● Identify and put in place an information handling system that incorporates green-
house gas data.
■■ Introduce greenhouse gas emissions into air quality legislation and put in place
a national information handling system that incorporates greenhouse gas data
alongside air pollution data.
●● Ensure that South Africa gets the best possible access to available climate change
funding.
■■ Ensure that an investment friendly climate is developed and maintained to attract
developed country partners to invest in climate change related projects in South
Africa.
■■ Co-ordination of Climate Change donor funds that are procured for South Africa.
■■ Involve the public sector and financing institutions linked to government, such
as the Industrial Development Corporation and the Development Bank of South
Africa.
The purpose of reproducing these objectives in full is twofold. First, it is interesting to
assess how these objectives underpin (or do not underpin) future policy directions. Sec-
ond, several of these objectives seem not to have been taken any further in the six years
since they have been set out. It is interesting also to note that some of the objectives are
stated in a somewhat curious way. For example, under the heading ‘International con-
cerns’, the stated objective is to ‘optimise South Africa’s potential to benefit from climate
change mitigation by suitable international response and positioning’, which is quite dif-
ferent from the usual view that mitigation will do anything but benefit a country. Many of
these issues will be picked up further in this chapter, but one final element that is worth
noting at this juncture is the exhortation to government to integrate its response to cli-
mate change. While this is a prerequisite, in my opinion, for an effective climate change
response, on overall reflection it appears that this message has not been heeded. It still
very much appears that the Department of Environmental Affairs is beating a lone drum
in this respect.

3.5 Long Term Mitigation Scenarios 2008

In March 2006, the Cabinet commissioned a process aimed at examining greenhouse gas
mitigation options. The purpose of the Long Term Mitigation Scenarios (LTMS) docu-
ment33 was ‘to outline different scenarios of mitigation action by South Africa, to inform
long-term national policy and to provide a solid basis for our position in multi-lateral
climate negotiations on a post–2012 climate regime’.34 The scenarios were sketched
between two limits: the ‘growth without constraints’ (GWC) limit and the ‘required by
science’ (RBS) limit, the latter based on a reduction of emissions of between 30 and
40 per cent from 2003 levels by 2050. The document examines various interventions
(referred to as ‘wedges’ in the document due to their shape if represented graphically) that
can be used to reduce the GWC levels closer to the RBS level, although the gap cannot
be closed completely, according to the document. These ‘wedges’ include a wide variety
of interventions, some of which can be implemented immediately and others introduced
only later. They range from general responses, such as energy efficiency, to more specific
ones, such as the use of ‘cleaner coal’ in energy generation, and changes in the transport
sector including increased use of public transport and moving from road to rail for freight
transport. The document highlights the important role that can be played by economic
instruments, including CO2 taxes and incentives for renewable electricity, solar water
heating and biofuels. Interestingly, it was reported that a senior official in the Department
of Environmental Affairs told the Parliamentary Committee in a briefing on the scenarios
document that it was the ‘first document to be published by the Department that spoke of
climate change’,35 ignoring completely the National Climate Change Response Strategy
for South Africa of 2004.
3.6 Integrated Resource Plan for Electricity 2009

In January 2008, South Africa experienced the debilitating phenomenon of ‘load shed-
ding’, where the available supply of electricity did not meet the demand. In order to avoid
unpredicted blackouts, load shedding entailed particular areas experiencing scheduled
cuts in power supply for a specific period of time. As it turned out, the situation was
not permanent, and things eventually returned to normal.36 The spectre of load shed-
ding, however, has not been permanently consigned to history and there are prospects
of electricity supply battling to meet anticipated demand in the future, which is the con-
text within which the Integrated Resource Plans (2009 and 2010 — see below) must be
considered.
The Integrated Resource Plan (IRP) for Electricity is required by electricity regulations
on new generation capacity in terms of the Electricity Regulation Act.37 Its significance to
33
Energy Research Centre Long Term Mitigation Scenarios: Technical Summary (October 2007).
34
Ibid at 2.
35
Parliamentary Monitoring Group at http://www.pmg.org.za/report/20080610-climate-change-and-long-
term-mitigation-strategies (accessed 7 February 2011).
36
See Terence Creamer ‘Why SA is load shedding when demand is peaking at a mere 33 000 MW’ 24
January 2008 Engineering News Online at http://www.engineeringnews.co.za/article/why-sa-is-load-
shedding-when-demand-is-peaking-at-a-mere–33-000-mw–2008-01–24 (accessed 3 February 2011).
37
Act 4 of 2006.

climate change policy is that electricity generation is a significant source of GHG emis-
sions in South Africa. The IRP ‘gives effect to the following policy objectives’:38
(i) 10 000 Gwh (approximately 4 per cent of the energy mix) of renewable energy us-
age,
(ii) The implementation of Energy Efficiency and Demand Side Management through
financial incentives scheme (sic), and
(iii) Installation of one million solar water heaters.
The IRP contains a schedule of power-generation sources including two new coal-fired
power stations (Medupi and Kusile) and makes it clear (although not using express words
to the effect) that coal remains the primary energy source. From the policy objectives
stated above it is also manifestly clear that renewable energy sources are regarded very
much as peripheral.
3.7 Integrated Resource Plan 2 2010

At the time of writing, the final IRP2 (as the 2010 Integrated Resource Plan is termed)
has not yet been released. A draft was released in October 2010, amidst concerns about
lack of transparency and public involvement in its formulation, as well as an expected
‘bias’ against renewable energy.39 According to the draft IRP, its primary objective is ‘to
determine the long-term electricity demand and detail how this demand should be met
in terms of generating capacity, type, timing and cost’.40 The IRP is based on certain
assumptions: a GDP growth trajectory of on average 4,5 per cent over the next 20 years,
which will require 41 346 MW of new capacity; and at least 3 420 MW of demand side
management programmes as well as gradual reduction in energy intensity due to, inter
alia, increased energy efficiency.41 The plan anticipates bulk demand being provided
principally by coal-fired generation (due, inter alia, to the low direct costs of coal and
South Africa’s high coal reserves), despite the recognition of the external costs of such an
approach. The bottom line is that renewable energy, although provided for in the plan, is
still accorded a peripheral role.
3.8 Carbon tax discussion document

This discussion document42 concludes that a carbon tax appears to be the most appro-
priate economic instrument to reduce GHG emissions in the country. According to the
document:
While it would not guarantee a fixed quantitative reduction in such emissions over the short
term, a carbon tax set at an appropriate level and phased in over time would provide a strong
38
GN 1243 in GG 32837 of 31 December 2009 at 10.
39
Leonie Joubert ‘Energy policy’ 12 July 2010 Business Day available at http://www.businessday.co.za/
Articles/Content.aspx?id=114454 (accessed 2 February 2011).
40
Executive summary of IRP 2010 at vi.
41
Ibid.
42
National Treasury Reducing Greenhouse Gas Emissions: The Carbon Tax Option (December 2010) Dis-
cussion Paper for Public Comment.

price signal and certainty to both producers and consumers, acting as an incentive for more
environmentally friendly behaviour over the long term.43
Implementation of a carbon tax in South Africa should be ‘informed by’ the following
policy considerations:44
●● In the absence of an international climate change agreement and a global emissions
pricing system, a partial, rather than full, internalisation of the externality should be
targeted as an interim measure.
●● While a carbon tax based on measured and verified emissions is preferred, a proxy
tax can be considered and levied according to the carbon content of fossil fuels (ie a
fuel input tax). A tax of R75 per ton of CO2 with an increase to around R200 per ton
CO2 (at 2005 prices) would be both feasible and appropriate to achieve the desired
behavioural changes and emission reduction targets.
●● The carbon tax should be introduced at a modest rate, which will increase over a set
time period, giving taxpayers an opportunity to adjust to the new tax.
●● The tax should, over time, be equivalent to the marginal external damage costs of
carbon.
●● Coverage should be comprehensive, covering all sectors.
●● Relief measures, if any, should be minimised and temporary. The design of the tax
needs to minimise the potential regressive impacts on low-income households and pro-
tect the competitiveness of key industries. Revenue recycling to minimise the costs of
the tax could be achieved through some form of tax shifting. The full earmarking of
revenues is not in line with sound fiscal policy principles, although some form of on-
budget funding for specific environmental programmes should be considered.
The carbon taxes discussion document will be followed (in 2011 apparently) by a
discussion document on emissions trading.45 Clearly, market mechanisms are an important
component of a comprehensive response to climate change, as recognised in the Climate
Change Green Paper (see below). It is strange, however, that there is no direct reference
in the Green Paper to this document, and vice versa.
3.9 National Climate Change Response Green Paper 201046

The purpose of the policy outlined in the Green Paper, which appeared late in 2010, is to
commit South Africa to making:
a fair contribution to the stabilisation of global greenhouse gas concentrations in the atmosphere
and the protection of the country and its people from the impacts of unavoidable climate change.
It presents the Government’s vision for an effective climate change response and the long-term
transition to a climate resilient and low-carbon economy and society — a vision premised on
Government’s commitment to sustainable development and a better life for all.47
43
Ibid at 9.
44
Ibid at 9–10.
45
Ibid at 10.
46
47
Green Paper at para 1.

The Green Paper sets out the following strategies that require implementation in order to
achieve the country’s climate change response objectives:48
●● Taking a balanced approach to both climate change mitigation and adaptation
responses in terms of prioritisation, focus, action and resource allocation.
●● Prioritising the development and maintenance of the science–policy interface and
knowledge management and dissemination systems to ensure that climate change
response decisions are informed by the best available information.
●● The short-term prioritisation of adaptation interventions that address immediate
threats to the health and well-being of South Africans including interventions in the
water, agriculture and health sectors.
●● The prioritisation of mitigation interventions that significantly contribute to a peak,
plateau and decline emission trajectory where greenhouse gas emissions peak in 2020
to 2025 at 34 and 42 per cent respectively below a business as usual baseline, plateau
to 2035 and begin declining in absolute terms from 2036 onwards, in particular, inter-
ventions within the energy, transport and industrial sectors.
●● The prioritisation of mitigation interventions that have potential positive job creation,
poverty alleviation and/or general economic impacts. In particular, interventions that
stimulate new industrial activities and those that improve the efficiency and competi-
tive advantage of existing business and industry. In order to accurately identify these
sectors and the job creation, industrial development potential of these, work will be
done in order that the White Paper provides a clear understanding and prioritisation
of these and their potential.
●● Prioritising the development of knowledge generation and information management
systems that increase our ability to measure and predict climate change and, espe-
cially extreme weather events, floods, droughts and forest and veld fires, and their
impacts on people and the environment.
●● The mainstreaming of climate change response into all national, provincial and local
planning regimes.
●● The use of incentives and disincentives, including through regulation and the use of
economic and fiscal measures to promote behaviour change that would support the
transition to a low carbon society and economy.
●● Acknowledging that, with the energy intensive nature of the South African economy,
the mitigation of greenhouse gases is generally not going to be easy or cheap and
that Government must support and facilitate the mitigation plans of, in particular, the
energy, transport and industrial sectors.
●● The recognition that sustainable development is also climate friendly development
and that that; the more sustainable our development path is, the easier it will be to
build resilience to climate change impacts.
●● Recognise that measures taken by developed countries in their efforts to respond to
climate change may have detrimental effects on high carbon and energy intensive
economies such as South Africa. These response measures may include trade mea-
sures including border tax adjustments, and could be reflected in a reluctance to trade
in goods with a high carbon footprint. South Africa’s climate change strategy must
48
Reproduced verbatim from the document at para 4.

recognise and address this and also create mechanisms that will give high carbon sec-
tors the support and time to move to lower carbon forms of production.
●● Recognise that South Africa’s response to climate change will have major implica-
tions for both the Southern African region and for Africa as a whole and ensure that
national responses are aligned to, support and operate as part of a broader regional
response.
The Green Paper considers policy approaches in the context of, first, those sectors of
South African society that most require adaptation (viz water, agriculture and human
health) and, second, those sectors where mitigation will be most important (energy, indus-
try and transport). The document also considers three other important sectors: disaster
risk management; natural resource sectors; and human society, livelihoods and services.
The approach is to identify, for each of these sectors, the key challenges or impacts and
then to set out the policy responses, which take the form of actions (for example, in the
context of water, to ‘continue to develop and maintain good water management systems
and institutions, from village through to national level, to ensure we achieve our equity
objectives, and can sustain affordable provision of water to all’).49
Many of the identified actions involve increased research, investigation or ‘explora-
tion’ of various issues, which is not unexpected in a document such as this. There are also
several actions involving developing awareness, the development of more issue-specific
plans and strategies, and increased investment in infrastructure — both maintenance and
expansion. In light of the fact that this is not the place to evaluate each policy response
individually, only certain of these responses will be highlighted here because they are
noteworthy in the sense that they influence the overall policy framework, or, as this is
essentially a legal analysis, because they envisage direct legal responses.50
Responses that are interesting from a general policy-direction perspective relate pri-
marily to energy. The Green Paper recommends that a ‘climate constraint’ be integrated
into the Integrated Energy Plan (IEP) and the Integrated Resource Plan for Electricity
Generation (IRP).51 It would probably be argued by the originators of these documents
(IEP and IRP) that this has been done, but the extent to which this integration has
been taken on board in a real, as opposed to window-dressing, manner is a concern.
An important commitment is the recommendation to review and ‘scale up’ the 10 000
GWh 2013 Renewable Energy target ‘in order that it can sustain long term growth in
order to promote competitiveness for renewable energy with conventional energies in the
medium and long term’.52 Although this is a desirable direction if a genuine approach to
reduction of GHG emissions is to be sustained, the absence of a more specific target may
well permit minimal improvements in this regard, to the extent that any gains have an
insignificant overall impact. Likely to be contentious is the suggestion that the potential
for nuclear energy be explored and further developed.53 It is clear that nuclear energy will
49
Ibid at para 5.1.1.
50
Many of the actions identified may eventually have to be implemented by means of regulation. The current
exercise examines only those where there is a direct regulatory device mentioned or clearly envisaged in
the stated policy response.
51
Green Paper para 5.4.1.
52
Ibid at para 5.4.7.
53
Ibid at para 5.4.9.

have to be included in discussions of the appropriate future energy mix for the country,
but it is clear from widespread opposition to the proposed pebble bed reactor that any
nuclear development will have to be well justified and demonstrably beneficial to South
Africa’s interests.
It is also interesting that some of the stated policy responses (worded in such a way as
suggests they are new initiatives, not bolstering of existing activities) are either clearly
already being done (at least on paper) or are arguably contained in existing activities or
regulatory requirements. For example, one of the responses is to ‘ensure that a compre-
hensive biodiversity monitoring system is established that can provide timely informa-
tion on specific risks’.54 The wording suggests that this is something that needs to be
established in the future, but it is exactly what is provided for already in the National
Environmental Management: Biodiversity Act55 in Chapter 3.
Responses requiring legal innovations are found throughout the document. Those
that relate to improved implementation of, or the securing of compliance with, existing
legislation are: the acceleration of the ‘finalisation and implementation of cost reflective
water and water-use pricing including effluent charges’;56 and the ‘vigorous’ enforce-
ment of compliance with water quality standards.57 The extension of existing regulatory
mechanisms is envisaged in the recommendation to ‘reduce the incidence of respiratory
diseases by improving air quality through reducing ambient particulate matter (PM) and
sulphur dioxide (SO2) concentrations by legislative and other measures to ensure full
compliance with National Ambient Air Quality Standards by 2020’.58 There is reference
to the use of s 29(1) of the National Environmental Management: Air Quality Act,59 to
manage GHG emissions from all significant industrial sources (ie sources responsible for
greater than 0.1 per cent of total emissions for the sector) ‘in line with approved mitigation
plans prepared by identified industries and/or sectors’;60 and the intention is expressed to
ensure that the Minimum Requirements for Landfills are revised and amended to reflect
greenhouse gas mitigation considerations by 2012.61
The setting of mandatory (presumably legally required) targets and frameworks is
also envisaged in several responses, without specifying existing legislation in terms of
which this may be done: these include the development of renewable energy policy, legal
and regulatory frameworks,62 and the setting of ‘ambitious and mandatory’ targets for
energy efficiency — ‘made mandatory through available regulatory instruments and
other appropriate mechanisms’.63 The latter is something that can be done without much
difficulty in order to reduce, not insignificantly, energy usage.64
54
Ibid at para 5.8.4.
55
Act 10 of 2004.
56
Green Paper at para 5.1.4.
57
Ibid at para 5.1.11.
58
Ibid at para 5.3.1. Such standards are set in terms of ss 9, 10 and 11 of the National Environmental Manage-
ment: Air Quality Act 39 of 2004.
59
Act 39 of 2004. See further discussion on this below.
60
61
62
63
64
See Lester R Brown Plan B 4.0: Mobilizing to Save Civilisation (2009) at 84–6.

The establishment of new legislative interventions is envisaged by several policy

responses. This will necessitate research in order to develop appropriate legislation for
the South African context, but this will be facilitated by the fact that several of these
regulatory mechanisms are in place in other countries. The introduction of a carbon tax is
placed on the agenda twice: one response urges the use of ‘market-based policy measures
such as an escalating carbon tax to price carbon and internalise the external costs of
climate change’,65 whilst a second suggests that South Africa ‘continue to develop and
implement an escalating CO2 tax on all energy related CO2 emissions, including process
emissions from the coal to liquid fuel process’.66 The United States is currently increasing
legislative efforts to require energy efficiency.67
Various energy-efficiency measures are recommended, which will probably require
new legislation: the development and implementation of ‘mandatory appliance labelling
for household appliances’;68 the introduction of ‘Minimum Energy Performance Stand-
ards (MEPS) for appliances and equipment, as well as proposals for mandatory energy
rating labelling’;69 and legislation imposing ‘requirements for the installation of energy
management systems in large-scale office buildings’.70 Related to the latter is the recom-
mendation to mandate the ‘National Home Builders Registration Council (NHBRC) to
ensure that building construction conforms to green building requirements, including
measures such as use of controlled ventilation, recycled material, [and] solar power’.71
The energy-saving benefits of so-called ‘green buildings’ are clear,72 and the European
Union has a Directive on the energy performance of buildings which can provide South
Africa with guidance in this regard.73 Also probably requiring new legislation will be the
objective of promoting the ‘development and implementation of appropriate standards
and guidelines and codes of practice for the appropriate use of renewable energy, energy
efficient and low carbon technologies’.74
Another legislative innovation will be the development of a ‘legislative policy and reg-
ulatory framework to support carbon capture and storage’.75 It is likely that the Australian
lead in legislating for the storage of greenhouse gas will be instructive in this regard.76
Finally (on the legal theme), there are responses relating to reporting of emissions. The
Green Paper recommends the development, implementation and maintenance of a ‘green-
house gas emissions information management system in respect of the energy sector
65
66
Ibid at para 5.5.4.
67
John M Broder ‘Obama orders new rules to raise energy efficiency’ (5 Feb 2009) New York Times, avail-
able at http://www.nytimes.com/2009/02/06/us/politics/06energy.html (accessed 4 February 2011).
68
69
70
71
Ibid at para 5.9.8.
72
Brown (n 64) at 87–91.
73
Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy perfor-
mance of buildings.
74
75
76
See the Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2006 (Cth); the Greenhouse Geo-
logical Sequestration Act 208 (Vic) and the Greenhouse Gas Storage Act 2009 (Qld).

that provides accurate, up to date and complete information to the South African Air
Quality Information System’s National Greenhouse Gas Inventory hosted by the South
African Weather Service’.77 Such a greenhouse gas emissions information management
system must provide ‘measurable, reportable and verifiable information on all significant
interventions (ie interventions that reduce greenhouse gases by greater than 0.1 percent
of emissions from the sector)’.78 A similar response requires the ‘mandatory submission
of greenhouse gas emission data to the National Atmospheric Emission Inventory by all
significant emitters and compilers of greenhouse gas emission related data and/or proxy
data by 2013’.79
As for governance, the Green Paper contains some important responses. The document
requires all government departments and all state owned enterprises to: (i) ‘by 2012, con-
duct a review of all policies, strategies, legislation, regulations and plans falling within
its jurisdiction or sphere of influence to ensure full alignment with the National Climate
Change Response Policy’ (NCCRP); and (ii) by 2014, ‘ensure that all policies, strategies,
legislation, regulations and plans falling within its jurisdiction or sphere of influence
are fully aligned with the [NCCRP]’.80 In so far as governance structure is concerned,
the Green Paper envisages the formation of the Interministerial Committee on Climate
Change, at executive (Cabinet) level. The committee is intended to ‘foster the exchange of
information, consultation, agreement, assistance and support among the spheres of gov-
ernment with respect to climate change and government’s response to climate change’.
Integration throughout government of climate change response actions is critical and it is
important, therefore, that this Committee plays a central role to achieve this.
The Green Paper also deals with issues of resource inputs (for example, financing cli-
mate change responses) and monitoring, evaluation and review. As with most policies,
the acid test will be the way in which the policy is translated into action. The implementa-
tion of the policy will ultimately, for the most part, have to be carried out by means of
legislation, whether by means of using or amending existing laws (such as the Air Quality
Act) or by enacting dedicated climate change response legislation. Several responses,
as pointed out above, require further research or examination as to appropriate ways of
addressing the issue in question, which suggests that a single enactment may be delayed
too long (pending completion of all the underlying research and investigation) in order to
be optimally effective. If climate change response is to use existing law, it is necessary to
examine what the law currently entails as far as climate change goes.
4. South African law relating to climate change

Currently, South Africa has little in the way of legislation that directly addresses climate
change issues, although there are some specific legislative provisions that can be used
for that purpose and a legislative framework which arguably requires more pro-action by
government in this regard.
77
Green Paper at para 5.4.19. See, further, Rina Taviv, Stanford Mwakasonda & Jongikhaya Witi Developing
the GHG inventory for South Africa (2008).
78
79
Ibid at para 8.4.2.
80
Ibid at para 6.1.

At the apex of South Africa’s legal system is the Constitution, including a Bill of
Rights which ‘applies to all law, and binds the legislature, the executive, the judiciary
and all organs of state’.81 The Constitution includes the so-called ‘environmental right’82
which provides:
Everyone has the right—
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(iv) secure ecologically sustainable development and use of natural resources while pro-
moting justifiable economic and social development.
Added to this are the national environmental management principles in the National
Environmental Management Act,83 which revolve around the concepts of people being at
the centre of environmental management and sustainable development. Section 24 of the
Constitution together with the national environmental management principles arguably
requires the South African government to address climate change and its possible impacts
on South Africa, by means of legislation and other reasonable measures.
When it comes to addressing GHG emissions, the National Environmental Manage-
ment: Air Quality Act84 has potential. Although the Act contains no express reference
to ‘climate change’,85 it does provide that an atmospheric emission licence must contain
greenhouse gas emission measurement and reporting requirements.86 Also, the Act pro-
vides for the declaration of a ‘priority air pollutant’,87 and this section could be used to
declare GHGs as priority pollutants. Priority pollutants would then be specially regulated
by means of pollution prevention plans provided for in respect of the specific pollutants.
This is, in fact, envisaged by the Green Paper.88 At the time of writing, the power in s 29
has not yet been used for this purpose, and it is important to note that it is a directory
provision, not a mandatory one, so there is no compulsion on the Minister to make such
a declaration.
Also relevant is the Electricity Regulation Act,89 under which regulations were prom-
ulgated requiring the periodic production of the Integrated Resource Plans, as discussed
above.90 The Act contains amongst its objectives the achievement of efficient, effective,
81
Section 8(1) of the Constitution of the Republic of South Africa 1996.
82
Section 24.
83
Act 107 of 1998.
84
Act 39 of 2004. Hereafter referred to as the Air Quality Act.
85
There is an oblique reference in the Preamble.
86
Section 43(1)(l).
87
Section 29, which provides (in s 29(1)) that:
‘The Minister or MEC may, by notice in the Gazette—
(a) declare any substance contributing to air pollution as a priority air pollutant; and
(b) require persons falling within a category specified in the notice to prepare, submit to the Minister or
MEC for approval, and implement pollution prevention plans in respect of a substance declared as a
priority air pollutant in terms of paragraph (a)’.
88
See text corresponding to n 50 above.
89
Act 4 of 2006.
90
Electricity Regulations on New Generation Capacity: GN R721 GG 32378 of 5 August 2009.

sustainable and orderly development and operation of electricity supply infrastructure

in South Africa; ensuring that the interests and needs of present and future electric-
ity customers and end users are safeguarded and met, having regard to the governance,
efficiency, effectiveness and long-term sustainability of the electricity supply industry
within the broader context of economic energy regulation in the Republic; and the promo-
tion of the use of diverse energy sources and energy efficiency.91 There is, however, no
explicit reference to climate change considerations in the Act.
Finally, in 2010, the Minister of Finance announced in his budget speech a flat rate
CO2 emissions tax on new motor vehicles, with effect from 1 September 2010.92
Although South Africa’s law relating to climate change is currently sparse, legislative
innovation seems certain in the light of the Green Paper’s recommendations and South
Africa’s commitments to GHG emissions reduction made on the international plane, to
which our attention now turns.
5. South Africa’s recent role in international climate change negotiations

South Africa ratified the Framework Convention on 29 August 1997 and the Kyoto Proto-
col on 31 July 2002.93 It is a Non-Annex I party to the Convention. During the approach
to the United Nations Climate Change Conference (incorporating the 15th Conference of
the Parties (COP15) and the 5th meeting of the Parties to the Kyoto Protocol (MOP5)) in
Copenhagen, Denmark in December 2009, South Africa was aligned with the common
African position as set out in the Nairobi Declaration on the African Process for Combat-
ing Climate Change.94 The salient features of the declaration were commitments to:
●● Urge developed countries to set ambitious targets to reduce their emissions, by 2020,
of at least 40 per cent below 1990 levels, and, by 2050, by between 80 and 95 per cent
below those levels, and to achieve the concentration of 450 ppm of carbon dioxide
equivalent in the atmosphere;
●● Urge developed countries to support Africa by providing finance, technology and
capacity-building in a measurable, reportable and verifiable manner;
●● Reaffirm African nations’ strong commitment that adaptation for climate change is
the first priority at the national and regional levels; and
●● Agree that any African climate change mitigation efforts will be voluntary and will
require adequate financing, technology and capacity support.
Inter Press Service then reported that, the day before the Copenhagen conference, South
Africa broke ranks from the common African position and announced a (conditional) 34
per cent reduction in GHG emissions from business as usual by 2020 and 42 per cent by
2025.95 This ‘commitment’ will be discussed in more detail below. The conference itself
91
Section 2.
92
See National Treasury Press Release regarding CO2 vehicle emissions tax (26 August 2010) available at
http://www.treasury.gov.za/comm_media/press/2010/2010082601.pdf (accessed 7 February 2011).
93
See discussion on these instruments above, 60.
94
This document is available at http://www.unep.org/roa/Amcen/Amcen_Events/3rd_ss/Docs/nairobi-
Decration–2009.pdf (accessed 4 February 2011).
95
Servaas van den Bosch ‘South Africa’s empty promise’ (15 December 2009) at http://allafrica.com/sto-
ries/200912150890.html (accessed 4 February 2011).

was a frustrating process for those who expected a binding agreement, with the result
being the Copenhagen Accord - a ‘political rather than … legal’96 document which par-
ties decided to ‘take note of’ rather than adopt. Even this limited outcome, however, was
only possible due to the breaking of an impasse through negotiations of a smaller group of
28 countries, followed by an even smaller meeting involving the presidents of the BASIC
countries97 together with the President of the United States.98
The Accord ‘requires’ of developing countries (including South Africa) that nationally
appropriate mitigation actions (NAMAs) that receive international support (eg funding
and technical support) ‘will be subject to international measurement, reporting and veri-
fication (MRV) in accordance with guidelines adopted by the Conference of the Parties’.99
As for NAMAs that do not receive support, developing countries are required to submit
their mitigation actions in a defined format for compilation by the UNFCCC Secretariat;
non-Annex I parties are required to ‘implement’ the actions; and such actions will be
subject to domestic MRV to be reported biennially.100
South Africa associated itself with the accord,101 but made it clear in its communication
to the Secretariat that:
… the extent to which this action will be implemented depends on the provision of financial
resources, the transfer of technology and capacity building support by developed countries
… [and] … requires the finalisation of an ambitious, fair, effective and binding multilateral
agreement.
As for the future, and as will be expanded on further below, any commitment that South
Africa has made to reducing GHG emissions is contingent on, inter alia, the finalisation
of a binding multilateral agreement. Since such agreement will have to include the United
States and China, prospects for such an agreement do not look good at the moment.
6. Analysis
The Green Paper states as an objective that South Africa is aiming at a 34 per cent reduc-
tion in GHG emissions from business as usual by 2020 and 42 per cent by 2025.102 This
corresponds to the announcement made the day before the Copenhagen Conference in
late 2009. The first aspect to not about this objective is that it is not a reduction in absolute
terms, but a reduction from ‘business as usual’, which is unrestrained growth. Emissions
will, therefore, continue to grow, but at a lower rate than would have been the case in
the absence of mitigation actions. The second observation is that this ‘commitment’ is
contingent on international support (technology and funding) and the finalisation of ‘an
ambitious, fair, effective and binding multilateral agreement’.103 In the analysis that fol-
96
Daniel Bodansky ‘The Copenhagen climate change conference: A postmortem’ (2010) 104 American
Journal of International Law 230 at 235.
97
Brazil, South Africa, India and China.
98
Bodansky (n 96) at 234.
99
Copenhagen Accord (18 Dec 2009) in UNFCCC ‘Report of the Conference of the Parties on Its Fifteenth
Session’ Addendum at 5, UN Doc FCCC/CP/2009/11/Add.1 (30 Mar 2010) para 5.
100
Ibid.
101
Letter from South African Government to the UNFCCC Secretariat dated 29 January 2010.
102
Green Paper at para 4.
103
See above n 101.

lows, an evaluation will be made as to whether this is a realistic objective or whether it

is an ‘empty promise’. Several issues will be discussed here which may contribute to this
evaluation.
6.1 Continued reliance on coal

In the 2003 Integrated Energy Plan, untapped coal reserves in South Africa are estimated
at 55 billion tones, and coal is regarded as ‘plentiful and inexpensive to exploit’.104 Vari-
ous scenarios were raised in that plan, but notwithstanding different policy approaches
envisaged in these scenarios, the Plan concluded that ‘coal remains the dominant primary
energy source over the planning horizon’.105 This thinking has not changed in the inter-
vening period and renewable energy is still seen as a fringe source. In the 2009 Integrated
Resource Plan, central sources of electricity for the short to medium term are seen to be
the Medupi coal-fired power station (the first unit of which will be commissioned in 2012)
and the Kusile coal-fired station (the first unit of which to be commissioned in 2013). The
IRP2 process, which is yet to see a final document, has been criticised on the basis that
the drafters of the plan assume that coal and nuclear are the only real power-generation
options for the next few decades.106
In evaluating the suitability for South Africa of increased coal-fired energy generation
(not only in respect of climate change), it is instructive to consider some of the character-
istics of the Medupi Power Station, as an example. When Medupi is fully operational, it
will be producing 4 800 MW of power (more than a tenth of total current capacity), and
also producing 30Mt of CO2.107 It will commence operation in 2012, but will become fully
operational only some time after that. Controversially, Eskom (South Africa’s electricity
company) obtained a loan from the World Bank of US$3 billion in order to construct the
project.108 The power station will reportedly require 14.6 Mt of coal annually for the next
40 years109 and will require enormous amounts of water in a region of the country which
is already facing water stress.
Underlying increased future reliance on coal is the fact that coal is regarded as cheap.
This notion ignores the externalities of mining and using coal. Ironically, at the time
of writing, some concerns are being raised about the rising cost of coal internation-
ally, which may possibly have a negative impact on the cheap coal assumption which
underpins South Africa’s energy policy.110 The ‘cheap coal’ assumption is fundamental
104
Department of Minerals and Energy Integrated Energy Plan for the Republic of South Africa (March
2003) at para 3.
105
Ibid at para 6.
106
Joubert (n 39).
107
Carol Paton ‘Hot Air v Action’ (29 July 2010) Financial Mail available at http://www.fm.co.za/Article.
aspx?id=116438 (accessed 7 February 2011).
108
Janice Roberts ‘World Bank approves Eskom loan’ (9 April 2010) Mail & Guardian. For criticism, see, for
example, Khadija Sharife ‘South Africa: Country’s Dirty Secret — Eskom and the Medupi power plant’
available at http://allafrica.com/stories/201005140838.html (accessed 7 February 2011).
109
Jonathan Faurie ‘Medupi project on track for scheduled delivery’ (5 December 2008) Engineering News
Online available at http://www.engineeringnews.co.za/article/medupi-project-on-track-for-scheduled-
delivery–2008–12-05 (accessed 7 February 2011).
110
Chris Yelland ‘Analysis: Eskom pushing for coal price controls, mining regulation’ (7 February 2011) The
Daily Maverick at http://www.thedailymaverick.co.za/article/2011-02-04-analysis-eskom-pushing-for-
coal-price-controls-mining-regulation (accessed 7 February 2011).

to the apparent assumption that coal-fired energy is necessary for development, which is
considered in the next section. Before examining that, however, it is worth quoting the
Minister of Energy Affairs in her budget speech of 2010, in which she stated:
Working together with the Department of Science and Technology and through SANEDI (our
energy research entity), we will find home-grown scientific answers to the issue of carbon cap-
ture and storage as well as using our abundant coal reserves to produce clean forms of energy
to reduce greenhouse emissions.111
With this kind of thinking in government, one wonders how realistic the emissions reduc-
tion targets are.
6.2 Will burning more coal reduce poverty?

Government officials keep trotting out the line that development (or economic growth)
is dependent on more cheap electricity (or, in other words, more electricity generated by
coal).112 While this may appear to be intuitively self-evident, one must interrogate this
notion in order to ask exactly what type of development is required or why economic
growth is so important. Ultimately, the government is concerned with reduction of pov-
erty and increased employment.113 The crucial question must be, therefore, whether the
type of development that needs substantially more cheap electricity is that which will
address poverty and unemployment.
Economic analysis in recent years has indicated that modest growth in GDP has been
accompanied by widespread substitution of labour by capital equipment.114 Moreover, ‘as
the economy has become more capital-intensive it has also become more unequal, show-
ing increasing job losses and increased labour productivity, with no ”trickle-down effect”
experienced by the poor’.115 In addition, the low cost of energy has resulted in the economy
becoming highly energy-intensive, ‘with more energy used to produce equivalent levels of
economic output than in most other countries’.116 In the light of these observations, it has
been argued that ‘the trajectory of growth must shift towards labour intensive industries,
and away from the current emphasis on mining and refining and relatively high class con-
sumer durables’ so as to ensure that the poor have access to productive assets.117
Some observations that might serve to add further doubt to the government’s line
(which one commentator describes as ‘simplistic nonsense’)118 are:
111
2010 Budget Speech by Ms Dipuo Peters, MP, Minister of Energy, 20 April 2010 at 5.
112
See Yelland (n 110), who puts it thus: the premise is that:
‘abundant, cheap coal for the generation of electricity in South Africa is good for Eskom, for commerce
and industry, for the economy and the country and ultimately for the consumer. Eskom claims increases
in the cost of coal will lead to an increased price of electricity, which has a negative impact on GDP and
economic growth and, therefore, a negative impact on employment.’
113
See, for example, President Zuma’s State of the Nation Address, 11 February 2010.
114
H Bhorat, S Dieden & J Hodge The impact of structural and production method changes on employment
growth of occupational groups in South Africa (1998). See also Harald Winkler (ed) Energy Policies for
Sustainable Development in South Africa (2006) at 79.
115
Winkler (n 114) ibid.
116
Ibid.
117
NS Makgetla & T Meelis ‘Unpacking Unemployment’ (2003) 10 New Agenda 87. See also Winkler (n 114)
at 79.
118
Yelland (n 110).

Firstly, in the late 1980s, 1990s and early 2000s, when Eskom’s price of electricity was by far
the lowest in the world, South Africa’s economic growth rate was low and its rate of unemploy-
ment was very high.
Secondly, the artificially low Eskom electricity price enjoyed by BHP Billiton’s Hillside,
Bayside and Mozal aluminium smelters in recent years, which was significantly below the cost
of electricity production, did not enhance the country’s economic growth or reduce the high
rate of unemployment in South Africa. On the contrary, in response to secret, low electricity
price deals with Eskom, BHP Billiton imported bauxite to South Africa by ship, and exported
cheap South African electricity around the world in the form of aluminium ingots. The fact that
this was done at a time of electricity shortages and load-shedding in South Africa inhibited
economic growth and caused job losses.119
As this is ultimately a legal analysis, one must be careful not to suggest that this is unas-
sailable economic analysis. Far from it; the purpose of this brief discussion is not to argue
that the government line is wrong, but to point out that many people have doubts about
it120 and that it has not been adequately dissected and explained. If increased coal-reliant
energy generation is necessary to uplift the average South African, then the linkages
between the action (burning coal) and the result (development of the type that increases
employment and reduces poverty) need to be made more explicit than they have been. It
would, seem, however, that there are alternative routes to poverty-reduction that do not
rely on coal and these seem not to have been properly considered in the determination of
energy and climate change policy.
Having raised concerns about some of the assumptions underlying South Africa’s
energy (and hence climate change) policy, I turn now to considering aspects of South
Africa’s mitigation and adaptation strategies.
6.3 Mitigation: The example of transport

South Africa has committed itself to ambitious GHG emissions reduction targets and
there are several sectors, as identified within the Green Paper, where mitigation will be
most critical. Given that the timeframe within which these reductions are to occur is ten
to fifteen years from now, it is necessary to consider how realistic these goals are in the
context of what is currently happening in regard to mitigation. It is beyond the scope of
this paper to consider the question in respect of all sectors in South Africa, but I propose
to take one sector as an example. The sector in question is transport. In the Green Paper,
transport is identified as ‘the most rapidly growing source of greenhouse gas emissions in
South Africa, and … the second most significant source of greenhouse gas emissions’.121
In 2000, transport emissions contributed 12 per cent of total energy emissions, and in
2004, transport was responsible for 25,7 per cent of energy demand.122 Road transport
accounts for 84 per cent of transport energy use.123
Among the specific objectives for addressing climate change in the transport sector in
the Green Paper are to ‘continue to put in place transport policies and developments that
result in a modal shift in passenger transport to public and low carbon forms of transport
119
Ibid.
120
I have quoted only Yelland but his is not a lone voice.
121
Green Paper at para 5.6.
122
Ibid.
123
Ibid.

including plans to move freight from road to rail over time’,124 and to ‘encourage the integra-
tion of land use and transportation planning in cities in a manner that encourages public
transport, non-motorised transport (walking and cycling) and promotes alternative com-
munication methods such as telecommuting, in order to reduce long term transport fuel use
patterns’.125 These objectives must be seen in the light of the fact that, between 1997 and
2004, the national percentage of people who used cars rose from 30 per cent to 45 per cent126
(and there is nothing to suggest that this percentage is not still increasing).127
Two principal aspects of the objective are moving freight from road to rail and increas-
ing public transport in an urban environment where there is a coherent transport plan.
Are such changes likely in ten to fifteen years? In the 1996 White Paper on a National
Transport Policy128 there are numerous fairly vague statements of transport goals, high-
lighting improved infrastructure and noble ideals such as efficiency, effectiveness and
safety, but there are few express policy objectives to the effect, for example, that carriage
of freight by road ought to be changed to rail conveyance. In the absence of any signifi-
cant programme (if any at all) in respect of converting road freight to rail, what are the
prospects of such a move being made within ten years, in such a way that there could be a
positive result from an emissions perspective? There are currently 325 539 heavy vehicles
registered to operate on South African roads.129 Significant numbers of these vehicles will
be affected in the event that a policy is developed to convert road to rail. Leaving aside the
development of an implementation plan for such conversion, the consultation that will be
necessary with the owners and operators of the heavy trucks currently carrying freight
on South African roads will take time, which suggests it is unlikely that any significant
progress will be made in this sector before 2020, by when South Africa intends to reduce
emissions by 34 per cent (compared with a ‘business as usual’ baseline).
As for public transport, South Africa is not renowned for comprehensive public trans-
port systems, and probably the most widely-spread transport service, the minibus taxi,
is not strictly a ‘public’ transport service. Whilst there are some efforts afoot in various
public transport sectors to improve services (for example, the minibus taxi recapitalisa-
tion programme), these efforts are unco-ordinated. As Walters observes:
At present each [public transport] mode is being dealt with from a ‘silo’ approach which, if not
dealt with firmly and timeously, will result in sub-optimal public transport systems in the main
urban and metropolitan areas. One of the major challenges will therefore be to integrate the
respective modes via integrated transport plans and to render seamless public transport services
124
Ibid at para 5.6.1.
125
Ibid at para 5.6.2.
126
Marianne Vanderschuren, TE Lane & W Korver ‘Managing energy demand through transport policy:
What can South Africa learn from Europe?’ 2010 (38) Energy Policy 826 at 829.
127
Although growth in motor vehicle sales dropped off as a result (seemingly) of economic factors from 2008,
the overall growth trajectory is still upward.
128
Department of Transport White Paper on a National Transport Policy (1996).
129
31 January 2011 — Live vehicle population as per the National Traffic Information System — eNaTIS
available at http://www.enatis.com/images/stories/statistics/livevehpopulationvehclassprov20110131.pdf
(accessed 7 February 2011). Heavy vehicles are those that have a gross vehicle mass of more than 3 500 kg
and exclude buses.

across all transport areas. This will require significant consultation with the affected parties in an
effort to convince such parties of the benefit of a systems approach.130
This discussion demonstrates that efforts at transforming the transport sector in order to
reduce GHG emissions will probably be starting almost from scratch, although there have
been recent innovations in the form of a carbon tax on new vehicles.131 This suggests that
it will take significant effort to make a difference at least in the transport sector.
6.4 Adaptation
The Green Paper identifies three key adaptation sectors: water, agriculture, and human
health. At the risk of sounding overly pessimistic, there are no shining beacons on the
international horizon suggesting that there will be a regime which provides for sufficient
international, binding mitigation actions to reduce the GHG levels to acceptable levels.
This suggests that adaptation will be relatively much more important than mitigation.
While the Green Paper identifies several strategic objectives aimed at enhancing adapta-
tion, most of these rely on further research and investigation. There are a few existing
legal measures that are relevant to adaptation, predominantly in the water sector, and they
almost all focus on better implementation and enforcement of existing water legislation.132
If legislation is to be improved or new legislation enacted in order to address adaptation
concerns, those aspects requiring further investigation must be explored sufficiently soon
in order that the research results can be applied in practice.
Clearly, an important facet of adaptation is disaster management, and this is recog-
nised in the Green Paper.133 South Africa does have disaster management legislation (the
Disaster Management Act)134 but increased effort will have to be put into early warning,
preparedness, emergency response and post-disaster recovery, particularly since climate-
related disasters will not be completely unforeseen.
7. Conclusion
South Africa has committed itself to ambitious and challenging GHG emission targets (in
the absence of current international law requirements binding the country) for 2020 and
2025 (assuming its conditions are met). The initial commitment is to reduce emissions
below the business-as-usual baseline by 2020, which is less than a decade away. Yet at
the same time that these commitments are being made on the international plane, and
reinforced in domestic policy, South Africa is also developing energy policy that seems
to fly directly in the face of its climate change objectives. For the foreseeable future,
South Africa’s energy mix will be overwhelmingly coal-based. While paper recognition
is being given to coal’s externalities, large swathes of the country are being prospected
and mined for coal and even protected areas are not safe from the tentacles of the mining
industry. It may well be that the targets will be achievable despite Medupi and Kusile
130
Jackie Walters ‘Overview of public transport policy developments in South Africa’ (2008) 22 Research in
Transportation Economics 98 at 107.
131
See above, text corresponding to n 92.
132
See Green Paper at para 5.1.
133
Ibid at para 5.7.
134
Act 57 of 2002.

and the recommission of certain mothballed coal-fired power plants, but there is a strong
suspicion in civil society that this is not the case. At the very least, the government needs
to be more transparent and provide better, scientifically and economically rigorous, justi-
fication for its policies and the policies’ underlying assumptions.
In any event, for South Africa to achieve its mitigation targets requires an integrated
response. Up until now, it has appeared as if the climate change response agenda has been
piloted by the Department of Environmental Affairs whilst other government depart-
ments (for example, Energy) have paid it lip service if they have acknowledged it at all.
One would hope that the Interministerial Committee envisaged in the Green Paper will
assist in this regard.
South Africa is one of the world’s highest emitters of greenhouse gases and the highest
in Africa. Whilst it is important that it works together with other developing countries
to develop an international structure that recognises common but differentiated respon-
sibilities in an appropriate way, it ought certainly as a leading emitter to demonstrate
leadership in addressing climate change. International leadership requires a coherent
domestic approach and much work is still needed, in my view, for this to be in place.
Finally, and with the important purpose of recognising that South Africa is not alone
in dragging its heels on climate change, it is worth reiterating that South Africa’s emis-
sions reduction targets are conditional on a realistic, binding multilateral agreement on
climate change being adopted. This, of necessity, must involve all countries, particularly
some of those who have been most reluctant to make commitments up until now. As Fang
correctly observes,135 South Africa and other prominent developing countries136 will not
adopt legally binding targets if developed countries do not.
135
Fang (n 2) at 4590.
136
Fang refers to the ‘Plus Five’: China, India, Brazil and South Africa (the BASIC countries) and Mexico.

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Environmental Law

Environmental_Law.indb 1 2011/07/08 10:37 AM

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© Juta & Company Ltd, 2011

First floor, Sunclare Building,

Project managed by Patty Searle

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Chapter 2: The Constitution and Framework Environmental Legislation............ 20

Chapter 3: International Environmental Law.......................................................... 45

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8.12 Convention on the Conservation of Migratory Species of Wild

Chapter 4: Water Law and the Environment............................................................ 68

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Chapter 5: Conservation of Biodiversity................................................................... 97

Chapter 6: Pollution Control and Waste Management............................................ 142

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5.2 Disposal of trade effluent.......................................................................... 169

Chapter 7: Land Use and Planning............................................................................ 209

Chapter 8: Implementation and Administration of Environmental Law............... 266

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1.1 Who is the state?....................................................................................... 266

Chapter 9: Environmental Justice: A South African Perspective........................... 292

Chapter 10: South Africa’s Position on Climate Change......................................... 308

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6.1 Continued reliance on coal........................................................................ 327

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1. The meaning of ‘environment’

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Examination of various statutory definitions of the environment indicate that, while

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2. The scope of environmental law

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3. Environmental law: Distinctive principles?

3.1 The polluter pays principle

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3.2 The precautionary principle

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3.3 Other principles

The preventive principle

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The principle of co-operation

The duty of care to avoid harm to the environment

Life cycle responsibility

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4. The history of environmental law

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5. The reasons for environmental law

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Figure 1: Planetary Boundaries110

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1. The Constitution of the Republic of South Africa, 1996

South Africa’s environmental right is contained in s 24 of the 1996 Constitution,7

If we consider this approach in the context of a specific example — the deprivation of

2. Framework environmental legislation: The National Environmental