ummeli Read in English Lees in Afrikaans Read in Setswana Read in isiXhosa

banner 1 english

 

juta-online-shop-banner

 

ENVIRONMENTAL LAW - FAQ's             Back to home page

 

The Environment is a broad concept: it includes the land, water and plants, and the relationship between these natural resources and animals, as well as the conditions which influence people’s health and well being.

The Constitution says that we have the right to a safe and healthy environment. We therefore need to protect the quality of our environment as the quality of the environment affects all of us, no matter where we live.

Environmental law is complex as is the constitution, the common law and legislation. They work together like a web of rules, which an attorney practising environmental law can use to determine the rights that people enjoy, and then how to best protect these rights.

  1. What is the relationship between environmental laws, environmental health and human health?
  2. What are the Key Environmental Issues existing in South Africa?
  3. What should be done to improve Environmental health?
  4. How does the SADC Regional Indicative Strategic Development Plan assist to alleviate Environmental problems?
  5. What are the categories of law that affect the relationship of people and the environment?
  6. Which National Acts were promulgated in SA to protect Environmental resources and to improve Environmental Health?
  7. What does our Constitution say about our environment?
  8. How is the Common Law relevant in dealing with environmental issues?
  9. What are ‘sectoral’ laws as they relate to the environment?
  10. What are some of the ways that environmental disputes can be resolved without going to court?
  11. Who has legal standing to bring an environmental matter to court?
  12. What are some of the legal remedies available to resolve environmental disputes?
  13. How does a beach obtain ‘Blue Flag’ status?
  14. What is the Environmental Law Organization?
  15. What is some of the legislation related to Environmental Law?

 

1. What is the relationship between environmental laws and human health?

 

Environmental law describes international treaties (conventions), statutes, regulations, national legislation and common law with the purpose of reducing the impact of human activity on the natural environment and thereby improving unhealthy environmental conditions.

According to a Briefing Note (2009/04) published by the CSIR, there is a clear link between the state of the environment and human health and well-being.

According to the World Health Organization (WHO) an estimated 23% of all deaths in Africa are the result of avoidable environmental hazards - currently 16% of all deaths in the country are related to the state of the environment.

Environmental hazards mostly impact upon the poor and other vulnerable groups. For example, more than a third of diseases in children under the age of five years, such as diarrhoea and respiratory diseases, are due to environmental hazards.

A healthy society and productive workforce play an important role in economic growth and sustainable development. Environmental hazards place a burden on the country’s productive workforce e.g. days lost due to sick leave, lower productivity and early retirement.

The limitations and expenses that Environmental law may impose on commerce have generated and continue to generate significant controversy.

 

2. What are the Key Environmental Issues existing in South Africa?

Lack of water – water is South Africa's most critical resource. Less than 10% of South Africa’s rainfall is available as surface water and the excessive use of groundwater also reduces the availability of surface water in SA - one of the lowest conversion ratios in the world. Water supply and water quality is often also below standard. The shortfall in freshwater is tied to growing demands, but also to other issues such as loss of natural habitat and potentially climate change. South Africa is predicted to be short of water by 2050. In Mazibuko v The City of Johannesburg and Others 2010 (3) BCLR 239 (C) the Constitutional right of access to water was raised and the court had to decide on what constitutes “sufficient water”.

Destruction of natural habitats for instance the South African Fynbos, is one of the world’s most impressive botanical kingdomsAn estimated 8,500 species of vascular plants, of which 70% are endemic (they are found nowhere else in the world), are reported here. Natural vegetation has been cleared for agriculture and urban development. Poor land management, dam construction, mining, and illegal extraction for black market trade also pose a threat.InGrand Mines (Pty) Ltd v Giddey No 1999 (1) SA 960 (SCA) it was held that mines have an obligation to rehabilitate after opencast mining.

Overfishing & Introduction of exotic species - degradation of coastal spawning areas caused by persistent overharvesting e.g. pilchard, anchovy and rock lobster, causes several species to face local extinction. South Africa's natural habitats are also being colonized by alien species at great numbers through the introduction of exotic game fish.

Pollution - crude oil contamination from tankers' spills and discharge of polluted waters.South Africa also generates 50% of the air pollution on the African continent.Car transport and electricity generation are also major contributors to air pollution. InLascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd and Another 1997 (4) SA 578 (W),s 68(2) of the Mineral Act 50 of 1991 was enforced for the benefit of an owner of land which was polluted, prohibiting the escape of water containing injurious matter from the mines without having been previously rendered innocuous.

Global Warming - the potential impacts of global warming are likely to increase existing issues (e.g. water and biodiversity) and need to be considered in planning for the future

Socio -economic issues like waste management, transport, electricity (coal-fired stations and nuclear reactors), chemical poisoning etc.

Top of Page

3. What should be done to improve Environmental health?

The lack of reliable health and environmental data severely impacts on the ability of decision makers to reduce the impact of environmental hazards on vulnerable communities.

The country needs an effective Health Information Management System to coordinate improved data capture and accessibility. Environmental health can be improved through interventions such as:

  • Water storage at home, e.g. rainwater tanks.
  • Improved hygiene – toilets provisions and efficient waste water removal.
  • Proper water resource management
  • Using safer and cleaner fuels
  • Increased safety measures and environmental awareness.
  • Prevention of toxic substances abuse in the home and workplace
  • Effective environmental health strategies and policy
  • Environmental health education on how best to interact with the environment.

Top of Page

4. How does the SADC Regional Indicative Strategic Development Plan assist to alleviate Environmental problems?

The economies of SADC Member States are mainly agricultural based but the region continues to experience high levels of environmental degradation.

The SADC RISDP plan realizes the importance of sustainable use and management of the environment in fighting poverty and food insecurity. It also identifies the environment and sustainable development as a key intervention area.

Among the focus areas for Environment and Sustainable Development are the following:

  • Creating the requisite harmonized policy environment,
  • Creating legal and regulatory frameworks to promote regional cooperation on all issues relating to environment,
  • Creating and natural resources management
  • Promoting environmental mainstreaming to ensure the responsiveness of all SADC policies, strategies and programmes for sustainable development·
  • Regular assessment, monitoring and reporting on environmental conditions and trends in the SADC region
  • Capacity building, information sharing and awareness creation on problems and perspectives in environmental management; and,
  • Ensuring coordinated regional positions in the negotiations and implementation of agreements reached.

Top of Page

5. What are the categories of law in South Africa that affect the relationship of people and the environment?

 

  • The Constitution-which states that everyone has the right to a healthy environment
  • The Common Law which regulates how people interact with each other in the context of the environment, and protects the use and enjoyment of our own property
  • Legislation- National, Provincial and Municipal laws- some laws apply across all aspects of the environment, whilst other laws are sectoral in nature as they only apply to certain aspects of the environment such as fresh water, forests or mineral resources etc.

The Constitution, legislation and common law work together like a web of rules which you can use to determine the rights that people enjoy and how best to protect those rights.

Top of Page

6. Which National Acts were promulgated in SA to protect Environmental resources and improve Environmental Health?

 

This is not a complete list of all legislation related to environmental matters but include the most important national legislation dealing with environmental matters:

Top of Page

7. What does the Constitution say about the environment?

 

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

The Environmental Right-Section 27

Everyone has the right to:

  1. An environment which is not harmful to their health or well-being
  2. Promote conservation
  3. Secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development

Other Rights relevant to the environment-certain constitutional rights can be used to support reasonable environmental demands. These include:the right to life (Section11) the right to human dignity (Section 10), the right to privacy (Section 14) and certain socio economic rights.

The Right to Equality-environmental justice requires that the benefits we derive from the environment are shared equally among all people and that negative aspects, such as rubbish dumps are shared amongst all communities.

The Right to Administrative Justice-in terms of Section 33, everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for the decision.

Top of Page

8. How is the Common Law relevant in dealing with issues regarding the environment?

 

  • The Law of Delict-the common law of delict allows you to claim compensation from someone who does something that causes you harm. Therefore, in regards to an environmental issue you can sue a person in court for loss caused to you by the wrongful actions of that person and claim compensation for that loss.
  • For this you will be required to engage the services of an attorney.
  • The Law of Nuisance-the law of private nuisance recognizes the right of an owner of land to enjoy his or her land in physical comfort, convenience and well-being without reasonable interference from others. If the interference is unreasonable then a landowner can take legal action to protect his or her right to enjoy his or her land.
  • The Law of Neighbours-a landowner may not use his or her property in a way that causes harm to another person. This means that a landowner’s right to use the property is limited and there is an obligation on him or her not to act in a way that will infringe the rights of neighbours. The test of whether the landowner’s use of his or her property fails to comply with this obligation is one of reasonableness and fairness. The principle of reasonableness is relevant to all sorts of polluting activities.

Top of Page

9. What are the ‘sectoral’ laws relating to the environment?

 

Certain environmental laws apply to specific environmental areas in the over-arching categories of natural resources, pollution control and waste management, and land-use planning and development.

Here is a brief description of 2 sectoral laws:

  • National Environmental Management Air Quality Act (No39 of 2004)
  • The AQA aims to regulate air through providing for the establishment of a national framework for air quality and the monitoring of ambient air quality and emissions at the national, provincial and local level.
  • National Water Act (No36 of 1998)
  • The main purpose of the Act is to protect, conserve and manage water resources in a sustainable and equitable way so as to take into account various factors such as the basic human needs of present and future generations and the need to protect water resources.

Top of Page

10. What are some of the different ways environmental disputes can be solved without going to the courts?

 

Public Participation-certain environmental laws that certain public participation procedures must be when the relevant authorities make decisions or regulations under the law

The Promotion of Administrative Justice Act-which sets out the requirements for procedurally fair administrative action, which can range from notice-and-comment type of procedures to public hearings, and if the relevant authority fails to comply with these proceedings, their actions could be held to be invalid.

Environmental Campaigns-these may range from drawing the attention of the Government and developers to the facts, to protests and media campaigns.


Top of Page

11. Who has legal standing to bring an Environmental matter to court?

 

Individuals and NGO’s are allowed to take action to protect the environment in the public interest and will be entitled to bring the matter before the court (locus standi)

The following people may approach the court:

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

NEMA (National Environmental Management Act) also contains provisions with legal costs in taking matters to court.

It states that if a person brings a matter to court in the environmental or public interest, and is not successful, if certain conditions are met, the court may decide not to order the person to pay the costs of the successful party.

In addition, if the relevant person is successful, the court may decide (on application by the relevant person) to grant them certain additional costs to which they not ordinarily have been entitled.


Top of Page

12. What are some of the legal remedies available in environmental disputes?

 

Delictual claim for damages-you can have a claim when the actions of another person have caused harm to your property or yourself. The harm is represented as an amount of money which you claim from the wrongdoer to compensate you for the harm that you have suffered.

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

There are 3 basic requirements for granting an interdict:

  • There must be an action which is occurring or threatening to occur
  • The action must be wrongful-this also means that the person applying for the interdict must have a clear right which is in need of protection, and
  • The person requesting the interdict must have no other remedy available to him

Review-which refers to the courts ability to question whether the procedure, followed by an organ of state, in making an administrative decision was correct. Your lawyer can therefore approach to review an administrative decision when you feel that correct procedures have not been followed when making that decision.

Appeal-when you appeal against an administrative decision you are asking the court too look at the reasons the decision was made. You can appeal against the outcome of an administrative decision when you feel that the information available to the decision-maker should have resulted in a decision different from the one that was given.

All the above legal remedies require that you engage the services of an attorney.

Top of Page

13. How does a beach obtain ‘Blue Flag’ status?

 

The Blue Flag title is an international award given to beaches that meet standards of excellence in safety, amenities, cleanliness, environmental information and management. The programme is run world-wide by the Foundation for Environmental Education, a non-profit organisation founded in France in 1985.

Blue Flag beaches have to meet stringent requirements which include:

  • Environmental education activities available for beach-users
  • Information on water quality and local eco-systems to be displayed
  • Map of the beach to be displayed
  • Beach must be clean
  • No camping on the beach
  • Access to dogs and other pets to be strictly controlled
  • Supply of drinking water on the beach
  • At least one Blue Flag beach in each municipality must offer access to disabled beach users.

Blue Flag beach seasons are determined by the various municipalities involved, based on weather conditions and visitor figures.

Top of Page

14. What is the Environmental Law Organization?

 

  • The ELA is a non-profit organization that aims to promote the development, teaching, application and practice of environmental law. The organisation consists of members from different environmentally relevant disciplines who network and share information and knowledge in the field of environmental law.
  • The ELA holds an annual conference, provides regional seminars and workshops, liaises with environmental affairs departments, comments on policy and legislation and networks with other organizations in the field.
  • Anyone with an active interest in the development and application of environmental law can apply for membership: environmental law practitioners, students and academics, environmental consultants, government officials etc
  • Established in 1991, the ELA currently has 130 members. Here are their contact details
  • The ELA secretariat

Tel: (018) 299 1934

Fax: (018) 299 1923

www.elasa.co.za

Top of Page

15. What is some of the legislation related to Environmental Law?

 

Environmental Conservation Act, National Environmental management Act, National Environmental Waste Act, 2008, National Water Act, Water services Act, Disaster Management 2002.

Top of Page

legal-process-servers-banner