Section 24(a) of Act 108 of
1996 of the Constitution of the Republic of South Africa
guarantees the right of every person to an environment
that is "not harmful to their health or wellbeing.
Effect is given to this right in the National Environmental
Management Act 107 of 1998 (NEMA) through the imposition
of a duty that requires that:
"Every person who causes, has caused or may cause
significant pollution or degradation of the environment
or degradation from occurring, continuing or recurring,
or, in so far as such harm to the environment is authorised
by law or can not be reasonably avoided or stopped, to
minimise and rectify such pollution or degradation of
the environment." (Section 28[1])
A very similar duty of care, but specific to water resources,
is set out in Section 19 of the National Water Act 36
if 1998 (NWA) where once again "reasonable measures"
must be taken to prevent or rehabilitate pollution.
Both NEMA and the NWA include historical contamination
as one of the triggers for the obligation. As such, it
was the intention of the drafters of the legislation to
require reasonable measures to be taken not only where
activities are currently causing pollution or where they
may in future cause pollution, but also where past activities
have caused contamination, which contamination remains
evident in our environment today.
While conceding that it is somewhat harsh to compel a
company to incur substantial costs today for activities
that were not considered particularly irregular 120 years
ago, the alternative solution is far more unpalatable
- namely that ordinary taxpayers, who have no connection
whatsoever to the harm, and derived no benefit from it,
will through the clean-up activities of Government, be
compelled to pay for the remediation of the affected environments.
In balancing unfairness towards parties connected to the
polluter and who derived financial benefit from the pollution
against the even greater unfairness that would result
for ordinary taxpayers having to fund the clean-ups, the
retrospective provision in Section 28 of the NEMA was
intended to apply to activities that took place and to
harm that arose at any time historically whether before
or after the inception of NEMA in 1999. (Ian Sampson -
Environmental and Sustainability Law, Shepstone &
Wylie Attorneys.)
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Environmental Liability
