Study Guide

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# 2017 University of South Africa
All rights reserved
Printed and published by the

University of South Africa
Muckleneuk, Pretoria
LCP4805/1/2018–2022
70627487
ADL-Style
CONTENTS
Page
PREFACE vii
LIST OF ACRONYMS AND ABBREVIATIONS USED IN
THIS STUDY GUIDE xvi
THEME I: THE RISE OF ENVIRONMENTAL CONCERNS
GLOBALLY AND IN SOUTH AFRICA AND
SOUTH AFRICAN ENVIRONMENTAL LAW 1
Study unit 1: The environment and why it should
concern us 2
1.1 Introduction: Environmental concerns 3
1.2 Justification for studying legal rules relating to the protection of the
environment 5
1.3 The meaning of the term ‘‘environment’’ 6
1.4 Why do we protect the environment? 12
1.5 Classification of environmental problems 16
1.6 How to protect the environment: Legal norms and standards to manage and
protect the environment 18
1.7 The inherent link of environmental law with equity, transformation, redress
and justice 21
1.8 Concluding remarks 23
Study unit 2: Environmental law in South Africa 25

2.1 What is environmental law? 26
2.2 The sources of environmental law 30
2.3 Distinctive principles guiding and supporting environmental law 44
2.4 A brief overview of the history of environmental law 47
Study unit 3: International environmental law and

South Africa 49
3.1 Why international law plays an important role in the protection and
management of the environment 50
3.2 The nature of international law 52
3.3 The sources of international law 54
3.4 The recognition, status and application of (general) international law in terms
of the Constitution of the Republic of South Africa, 1996 57
3.5 Enforcement and/or compliance with international law 61
3.6 The development of international environmental law 62
LCP4805/1/2018–2022 iii
3.7 Distinctive principles guiding and supporting international environmental law 64
3.8 Relevant treaties and the challenges or problems they seek to address and
solve 65
3.9 The National Environmental Management Act and international law 65
3.10 Overview of the historical landmarks in the development of international
environmental law 67
3.11 Climate change 67
THEME II: THE CONSTITUTION OF THE REPUBLIC

OF SOUTH AFRICA, 1996 AND
ENVIRONMENTAL LAW 83
Study unit 4: The Constitution of the Republic of
South Africa, 1996 and framework
environmental legislation – the National
Environmental Management Act 107 of
1998 (NEMA) 84
4.1 General characteristics of the Constitution 85
4.2 The Bill of Rights and protection of the environment 90
4.3 Other fundamental rights that have an impact on the management/
administration and control of environmental matters 101
4.4 The National Environmental Management Act 107 of 1998 (NEMA): The Act’s
function as framework legislation and the principles it contains 114
Study unit 5: Cooperative government in environ-

mental management 121
5.1 Introduction 121
5.2 Conflict between national and provincial legislation 132
5.3 Cooperative government 134
5.4 Cooperative government and the National Environmental Management Act
107 of 1998 138
5.5 Concluding remarks and postscript 145
Theme III: THE MANAGEMENT OF THE ENVIRONMENT

(THE IMPLEMENTATION AND ADMINISTRA-
TION OF ENVIRONMENTAL LAW) 147
Study unit 6: Integrated environmental management 148
6.1 Towards integrated environmental management in South Africa 149
6.2 What is integrated environmental management? 150
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6.3 Important terms 152
6.4 Environmental authorisations 157
6.5 Environmental impact assessment 165
6.6 Further provisions in Chapter 5 175
Addendum 178
Study unit 7: Measures and institutions to ensure

compliance with and enforcement of
environmental law 196
7.1 Introduction 197
7.2 Criminal measures 201
7.3 Administrative measures 202
7.4 Civil measures 220
BIBLIOGRAPHY 226
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PREFACE
Welcome to the Environmental Law module. We hope you will find it informative and thought-
provoking.
Environmental law is infused with notions of equity, transformation, redress and justice. These
notions play a critical role in current environmental management in South Africa and will play a
critical role in future environmental management. While these notions will be unpacked later on
(namely, in study unit 1), it is important to recognise these notions from the outset of the
module.
Environmental Law is an elective module and we hope that you have registered for this course
because of a genuine interest in the conservation, protection and management of the
environment and not because the module fits best into your examination timetable. Students
often complain that the course is difficult, dense and boring and fails to deal with particular
topics that interest them. For example, quite a number of students complain that they need to
know more about the Mineral and Petroleum Resources Development Act 28 of 2002 and how it
relates to mining-related matters and the environment. Although we touch upon this Act in this
module, the emphasis is on the management and conservation of the environment as provided
for in the Constitution of the Republic of South Africa, 1996 (through the recognition of an
environmental right in s 24, among other things) and in the National Environmental
Management Act 107 of 1998.
Please take the time to read through this preface before you embark on any work in the study
guide.
Why you are studying Environmental Law

In academic language, the purpose of this module is as follows:
The module is designed to cover the principles of environmental law and to equip students with
skills, knowledge and attitudes to apply the law relating to the environment in practice and to
solve problems relating to environmental law. The module is informed by transformative
teaching and learning principles and incorporates various transformation values including
equity, access, participation, social justice and responsibility based on a constitutional
democracy, equipping students to accept their responsibility towards the realisation of a just
society. The module is aimed at those employed in the public sector and in private practice
(legal advisors, government officials and legal practitioners) who are involved with the
conservation, protection and management of the environment.
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What we are trying to do in this module is to give you sufficient knowledge of environmental law
to enable you to achieve the following outcomes:
Outcomes Assessment criteria
Analyse the role of environmental law . Legal problems and issues relating to
in current South African law and environmental law are identified in real or
everyday life. simulated fact scenarios.
. Daily occurrences regarding environmental law
are interpreted and analysed.
. Areas in need of legal development or reform are
recognised within a regional and global context
to cope with modern-day challenges and
problems.
Relate the theoretical framework of . The development of environmental law is

environmental law to the most explained and integrated with regard to the
pressing and prevalent issues existing legal position.
regarding environmental law. . Substantiated legal arguments, opinions and
solutions are presented on the basis of research.
. The relevance and applicability of various legal
sources and authorities in respect of identified
problems relating to environmental law are
analysed and critically evaluated.
. Different points of view in respect of
environmental law are discussed and evaluated.
. Language use is consistent with the conventions
in the discipline of law.
Apply the principles of environmental . Practical problems from case law and everyday
law in practical situations and solve examples are solved using appropriate research
multi-dimensional legal problems methods and applying the principles and rules
associated with environmental law. regarding environmental law.
. Responsible and expert advice on an
appropriate course of action is given in respect
of issues relating to environmental law.
. The knowledge and skills that students have
acquired in other areas of the law –
administrative law, in particular – are integrated
in discussing, analysing and applying the
principles regarding environmental law.
. Substantiated legal responses are provided,
based on the acquired knowledge base.
Having described the outcomes and assessment criteria in academic language, what does all
this mean in plain language?
We want to provide you with sufficient knowledge of environmental law to enable you to take the
following steps:
. Recognise a situation in everyday life, whether in a work context or in a broader practical
context, that involves environmental law.
. Analyse the situation to identify its essential elements.
. Situate these elements within the broader context of environmental law.
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. Identify which rules/concepts (principles) of environmental law apply to the situation.
. Finally, and most importantly, apply these rules/concepts (principles) to explain, and
hopefully resolve, the situation.
Within the strictly legal context – that is, not based on the political context or your own
subjective opinion – you will also be in a position to substantiate your solution with reference to
authoritative sources.
In short, our aim is to provide you with sufficient knowledge of environmental law in order to
enable you to function effectively and to make a difference in the world, environmentally
speaking. Hopefully, we will also engender in you a real interest in the subject, inspiring you to
pursue it (either formally or informally) for the rest of your life.
Our approach to the study of the module in

Environmental Law
As much as we hate to start a module on a note of warning, there are a few things that we must
make clear to you right from the start:
– Environmental Law is a LAW course. Environmental law is law, just as much as mercantile
law or criminal law is law. Just as you would not (we sincerely hope) attempt to prosecute
fraud or murder or rape without a detailed knowledge of the elements of the crime, or to
charge a company director with a violation of the Companies Act without having its
provisions at your fingertips, so too it is necessary for you to know the rules and theory of
environmental law. Moreover, you need to get to grips with these rules (principles) during
your studies, since you will definitely not learn about them once you have completed your
studies and are practising as a lawyer. Just because environmental law is in the news quite
often such as in TV news reports about pending court cases by aggrieved environmentalists
regarding imminent developments in ecologically sensitive areas, it is not less weighty than
any other law subject. The rules and theory of environmental law, like all law, need to be
studied and ‘‘internalised’’; they definitely cannot simply be absorbed, as if by osmosis.
– Environmental Law is presented as a semester module. However, as a public law subject,
the module has close links with other compulsory public law modules offered in this
department, namely, Administrative Law, Constitutional Law, Fundamental Rights,
Interpretation of Statutes and, in particular, Principles of Public International Law.
– Although Environmental Law is presented as a semester module, you should not
underestimate the course content. The amount of work involved is the same as in any
other law module. This also has implications for the standard of work we expect from you
and that we are legally required to prescribe.
a. Our emphasis is definitely on application and understanding. While you must have the
factual ‘‘law’’ knowledge, you need to do something with this knowledge, namely
(i) identify and describe what the applicable law is in a given factual situation, real or
hypothetical
(ii) apply the law to the facts presented
(iii) reach a definite conclusion, based on your discussion/explanation
b. We expect you to take responsibility for your studies. If you choose to enrol for 10
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modules per semester (as some people insist on doing), this is your decision. Likewise,
the fact that you are working and juggling family life and your studies is simply a fact of
life (albeit an unpleasant one). While we sympathise and are happy to support you where
we can, these factors can’t (and won’t) affect the standard of work we expect from you.
– Lastly, as we move into the second decade of the 21st century, life is becoming increasingly
‘‘electronic’’. Consequently, you are in the very fortunate position of having myUnisa at your
fingertips (literally). Please make use of this facility. It is ideal for setting up discussion
groups and will minimise that feeling of isolation that is an inevitable part of distance
education. We hope you will find our blended learning approach informative and
meaningful. Please take time to read through our welcoming message before you start
accessing the online tools.
Your approach to the study of the module in

Environmental Law
To be successful in this module, you must understand how the study guide works. It is no
coincidence that we call it a guide, because that is exactly what it is – an aid to guide you
through the prescribed work. It is certainly NOT a textbook.
As you will see, this study guide is divided into three themes:
Theme I, entitled ‘‘The rise of environmental concerns globally and in South Africa and South
African environmental law’’, consists of three study units.
Theme II, entitled ‘‘The Constitution of the Republic of South Africa, 1996 and environmental
law’’, consists of two study units. Since it contains an analysis of the National
Environmental Management Act (NEMA), it is an important theme in the module.
Theme III, entitled ‘‘The management of the environment (the implementation and
administration of environmental law)’’, consists of two study units.
How to use this study guide

In order to help you find your way through the study guide, the following ‘‘signposts’’ have been
posted throughout the guide. These signposts are as follows:
Overview
Right at the start of each study unit you will find an ‘‘overview’’ in a table. In the overview we
summarise the contents of the study unit, as indicated below.
x
OVERVIEW
Outcomes
The outcomes tell you what you are supposed to be able to do after working your way through a
particular study unit. You will find the outcomes right below the overview of each unit. The
outcomes are indicated as follows:
&
The purpose of this study guide is, firstly, to provide you with a sound understanding of the rules
and theory of environmental law. As we have indicated above, we do not advocate parrot-type
learning. However, we do emphasise the need for a proper understanding of the concepts of
environmental law. This means that you will have to internalise certain rules/concepts; in other
words, you have to learn them and make them your own.
Secondly, once you have mastered these concepts and are able to explain what they entail, you
will be required to apply them to actual problems encountered in everyday life. These
applications will take the form of activities in which you will be asked to apply the concepts you
have learned to the problems. It is essential that you complete these activities in order to
understand and master the principles explained. Thirdly, the activities have been set to help you
to practise the skill of always explaining the principles you have learned and of applying them to
a particular situation. After all, as a potential ‘‘environmentalist’’ and/or ‘‘environmental lawyer’’,
you must always substantiate your statements by referring to the Constitution, legislation,
common law, case law and other sources, such as the opinions of experts in the field of
environmental law.
You must do these exercises. Sit down and answer them in writing, but don’t submit them for
marking/correction. After all, we provide feedback on them (‘‘Comments on activities’’) in the
guide.
We will indicate the activities as follows:
Activity
Comments on activities – feedback

Immediately below each activity, you will find comments on the particular activity, which we call
‘‘feedback’’. Since you are advanced law students, the feedback will not be by way of detailed
answers to the questions. The comments will mainly take the form of ‘‘hints’’ to draw your
attention to the preceding discussion and to remind you of earlier discussions. Remember: a
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particular study unit should not be studied in isolation, but always in relation to either preceding
study units or following study units. The activities and feedback are included to help you to
assess your progress in mastering a particular aspect of environmental law (or to grasp the
rules of environmental law in general).
Should you find that you repeatedly answer the activities incorrectly, contact us for help in good
time – NOT the day before the examination!
Comments on activities will be indicated in the text as follows:
Comments on activity – feedback
PLEASE NOTE: In a number of the activities, you are referred to a particular newspaper
article taken from the Business Day, 11 August 2011. The heading of the
particular article reads ‘‘Wild Coast community to fight toll road’’ and
you will find it reproduced below.
Keeping a learning journal

It is a good idea to get a notebook in which to make notes and complete the various activities.
Should you feel more comfortable using a computer for these purposes, feel free to do so. The
point is that you need to engage with this guide in order to manage its contents. Paging through
the guide a day or two before the examination will not help you to master the basic principles of
environmental law. Nor will merely reading and rereading it. A copy of the Constitution of the
Republic of South Africa, 1996 is essential. Yet another essential tool is a copy of the National
Environmental Management Act 107 of 1998 (NEMA). Make sure that your copy is up to date
and reflects all the latest amendments to the Act. You must consult and refer to your copies of
the Constitution and NEMA when you answer the activities in the guide. By referring to these
Acts frequently, you will master their contents.
The process of making notes and completing the activities has become known as keeping a
learning journal. The following guidelines for keeping a learning journal have been adapted by
Dr Paul Prinsloo of Unisa’s DCLD (Directorate of Curriculum and Learning Development) from
the web pages of Carleton University’s Law Faculty in Ottawa, Ontario, Canada. Should you be
interested in looking at the web pages yourself, they are available at the following web address:
http://www2.carleton.ca/law/conflict/independent-learning-initiative/ (accessed 2011-10-31).
What is a learning journal?

A learning journal is a way of recording your thoughts, impressions, concerns, questions and
reflections systematically. It provides an informal yet focused opportunity to express whatever
comes to mind as you read course materials, participate in discussions, read articles and
engage in conversations with colleagues.
xii
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Why keep a learning journal?
If a learning journal is kept with frequent and fairly regular entries over months or years, it
provides a growing picture of your understanding of (Environmental Law) theory and practice,
your professional aspirations, and the ways in which your learning is unfolding. For some, it can
be a tool for analysing and solving problems; for others, it is a source of new ideas and
questions to be explored. Recording concerns and questions allows you to come back to them
and address them with new insights and perspectives. In essence, then, a learning journal
helps you think about, evaluate and bring together your learning throughout your learning
experience.
Objectives of a learning journal

1. Helping you reflect upon your learning experiences.
2. Helping you identify your strengths and weaknesses and your personal preferences,
values, biases and emotional reaction to various activities. (A learning journal can even be
used to write: ‘‘I hate this module(!)’’ Writing this down may make you feel better and then
you can get on with studying the module.)
3. Helping you evaluate your learning and development throughout the learning experience.
4. Facilitating the integration of theory and practice.
5. Assisting with assignments and examination preparation.
6. Helping you become a reflective practitioner.
How to keep a learning journal

There are several ways to keep a learning journal. You may use a notebook specifically for this
purpose. Experience has taught us, however, that many learners prefer to keep a file in which
they can add pages, articles, newspaper clippings, and so on.
Each entry should include the date, a brief description of the situation or learning event, a
reflective comment about your learning, assumptions, insights, feelings and questions and,
when possible, a brief description of follow-up action, resources or other ‘‘to do’’ information.
A learning journal is personal and will reflect the personality of the learner. Be creative. Be
honest. Be thorough. Challenge yourself.
Although a learning journal is very personal, it may also provide you with evidence of your
thought processes and problems should you wish to contact the lecturer (at the Department of
Public, Constitutional and International Law) or speak to a colleague or a peer.
Organise and write your observations, questions and comments without worrying about using
just the right word or worrying about whether your spelling and grammar are correct.
Continuing with your learning journal

Your learning journal will become a wonderful resource in your practice of law in whatever
capacity. You will be required to write down your reflections and answers to the questions in the
activities. If you write them down in your learning journal, your preparation for the assignments
and the examination will be much smoother than if you decide to skip the activities.
xiv
Assessment
By the end of the semester, we will need to determine whether we have succeeded in our aim,
namely, to enable you to achieve the outcomes we have set for this course.
Unfortunately, this can only really be done through assessment in one form or another. Details
of the compulsory assignments and the examination are provided in Tutorial Letter 101. In short,
it is essential that you submit the assignments to secure admission to the exam. It is also
important that you take the assignments seriously and submit the best answers possible.
These introductory remarks are sufficient; now it is time to get down to some work. Please let us
know if anything in this study guide is unclear, ambiguous or just student-unfriendly. This will
help us to sort out any problems and thereby improve the quality of the guide (see Tutorial Letter
101 for contact numbers, addresses, etc).
We wish you well in your studies and hope you enjoy this course.
Your lecturers for LCP4805
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LIST OF ACRONYMS AND ABBREVIATIONS USED IN
THIS STUDY GUIDE
CBD: (United Nations) Convention on Biological Diversity
CBDRRC: Common but differentiated responsibilities and respective capabilities
CFCs: Chlorofluorocarbons
CITES: Convention on International Trade in Endangered Species
CONNEPP: Consultative National Environmental Policy Process
COP: Conference of Parties
DFA: Development Facilitation Act
ECA: Environment Conservation Act
EIA: Environmental Impact Assessment
EMI: Environmental management inspector
EAP: Environmental assessment practitioner
EU: European Union
EWT: Endangered Wildlife Trust
FAO: Food and Agriculture Organisation (of the UN)
FCCC: Framework Convention on Climate Change
GATT: General Agreement on Tariffs and Trade
ICJ: International Court of Justice
IUCN: International Union for the Conservation of Nature and Natural Resources
IUPN: International Union for the Protection of Nature
IEL: International Environmental Law
IEM: Integrated environmental management
LUPO: Land Use Planning Ordinance 15 of 1985 (C)
MEC: Member of the Executive Council
MLRA: Marine Living Resources Act
MPRDA: Mineral and Petroleum Resources Development Act
NCOP: National Council of Provinces
NEMA: National Environmental Management Act
NEMPA: National Environmental Management: Protected Areas Act
NEMBA: National Environmental Management: Biodiversity Act
NEMAQA: National Environmental Management: Air Quality Act
NEMICMA: National Environmental Management: Integrated Coastal Management Act
NEMWA: National Environmental Management: Waste Act 59 of 2008
NFA: National Forests Act
NGO: Non-governmental organisation
NHRA: National Heritage Resources Act
NWA: National Water Act
PAIA: Promotion of Access to Information Act
PAJA: Promotion of Administrative Justice Act
PSC: Public Service Commission
RDP: Reconstruction and Development Plan
SANBI: South African National Biodiversity Institute
SANP: South African National Parks
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S&EIR: Scoping and environmental impact reporting
SEMAs: Specific environmental management Acts
UN: United Nations
UNCCUR: United Nations Conference on the Conservation and Utilisation of Resources
UNEP: United Nations Environmental Programme
UNESCO: United Nations Educational, Scientific and Cultural Organisation
WCED: World Commission on Environment and Development
WSSD: World Summit on Sustainable Development
WTO: World Trade Organization
WWF: World Wide Fund for Nature
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THEME I
THE RISE OF ENVIRONMENTAL CONCERNS

GLOBALLY AND IN SOUTH AFRICA AND
SOUTH AFRICAN ENVIRONMENTAL LAW
1
STUDY UNIT
1
The environment and why it should concern us
OVERVIEW
It has been said that the protection of the environment is a big, if not the biggest,
contemporary issue facing humanity. Environmental concerns are varied and multifaceted.
For this reason, the study of the legal rules pertaining to the protection of the environment –
environmental law – is important. The necessity to protect the environment raises the
question as to the meaning of the term ‘‘environment". It is possible to examine the term
‘‘environment’’ from both an expansive/wide and a restricted/narrow perspective. A more
realistic demarcation of the term is nonetheless found in South African framework
legislation, the National Environmental Management Act 107 of 1998 (NEMA). However, to
answer the question about the meaning of the term is, in the final instance, a political/policy
question that evokes different opinions. Answers to the question of why we have to protect
the environment primarily have an ethical foundation. Three such ethical approaches are
distinguished and discussed in this unit – the anthropocentric approach, the biocentric/
ecocentric approach and the ethic of sustainable development. The present-day
environmental concerns have been touched upon in the introduction; the problems arising
from environmental damage are explored in this study unit, which then concludes with an
account of the instruments/tools used to protect the environment.
Environmental problems may roughly be divided into four categories according to the
different approaches required for their effective solution. These categories are: degradable
wastes; persistent wastes; reversible biological and geophysical impacts; and irreversible
biological and geophysical impacts.
By the end of this study unit 1, you should be able to
& explain what constitutes the ‘‘environment’’

& explain why it is difficult to define ‘‘environment’’
& provide a basic definition of ‘‘environment’’
& explain why it is important to protect the environment
& mention ways of protecting the environment
& explain why law is an important tool to protect the environment
& explain why protecting and managing the environment includes a political (pol-
icy) dimension
2
& briefly explain what is meant by the principle ‘‘sustainable development’’
& briefly explain what you understand by ‘‘environmental management’’
& explain how the notions of equity, transformation, redress and justice are linked
within environmental law
1.1 Introduction: environmental concerns

The American magazine Time has a tradition of devoting its first issue of every
year to a ‘‘man/woman of the year’’ who made headlines the previous year for
whatever reason. In its issue nearly a quarter of a century ago (2 January
1989, to be precise), the unconventional choice was not a man/woman of the
year, but the earth as ‘‘planet of the year’’. The reason given for the unusual
choice was the ‘‘earth’s vulnerability to man’s reckless ways’’ (Time 1989:6).
In subsequent articles the four most pressing threats to the ‘‘earth’s
environment’’ at that time were identified under the following headings (and
the problem was briefly summarised under a subheading; in brackets, we
have added a brief explanation of the summarised problems in more
‘‘modern’’ language):
1. ‘‘The death of birth – the problem: Man is recklessly wiping out life on
earth’’ (the destruction of biodiversity)
2. ‘‘Feeling the heat – the problem: Greenhouse gases could create a
climactic calamity’’ (global warming, or to use the more acceptable term
today, ‘‘climate change’’)
3. ‘‘A stinking mess – the problem: Throwaway societies befoul their land
and seas’’ (waste on land and at sea)
4. ‘‘Too many mouths – the problem: Many people are running out of food
and space’’ (overpopulation)
The reference to ‘‘earth’s vulnerability to man’s reckless ways’’ highlights the

relationship between human beings and their environment. This relationship
(as the reference suggests) is uneasy, challenging and complex.
At present (the second decade into the 21st century), threats to the
environment have not diminished. Dramatic headlines underscore this
reality: ‘‘Save the rain forests!’’; ‘‘Illegal fishing with driftnets depletes our
oceans’’; ‘‘Why a sardine sandwich is better than a tuna roll’’; ‘‘Oil spill
destroyed rare marine life: the deepwater [drilling for oil] dilemmas’’; ‘‘We
choke on industrial air pollution!’’; and ‘‘We drown in rivers of waste!’’
We are constantly reminded that our planet is becoming ecologically more

unstable and increasingly more vulnerable to natural hazards as a result of the
depletion of its natural resources and the deterioration and destruction of its
natural processes. In the 2002 Johannesburg Declaration on Sustainable
Development, the ongoing threats facing our planet were detailed as follows
(par 13):
The global environment continues to suffer. Loss of biodiversity continues,
fish stocks continue to be depleted, desertification claims more and more
3
fertile land, the adverse effects of climate change are already evident, natural
disasters are more frequent and more devastating and developing countries
more vulnerable, and air, water and marine pollution continue to rob millions
of a decent life.
(We will return to the various environmental problems we encounter today

when we outline the various categories of environmental problems below.)
Consider this:
How has environmental deterioration or damage affected
Activity 1
. you as an individual
. your community as a whole?
. South Africa?
. the world?
Comments on activity 1 – feedback

You could have listed the following:
. The factory upstream pumps its refuse into the river, with the result that the water
in your dam has become undrinkable and the fish are dying.
. Excessive smoke or noxious and offensive gases from nearby factories often
pollute the entire neighbourhood or city. (Think also of the potential or real
damage – a health hazard, in particular – people can cause by not using refuse
bins and, despite pleas to recycle their waste, dumping their waste out on the
street and in any available open space.)
. Pollution of our rivers through industrial activities can cause widespread damage
to crops and spread human diseases, affecting the whole South African
population. (Think also of the potential or real damage caused by the
decanting of untreated acid mine water in certain areas of Gauteng, which is
almost daily in the news.)
. The whole world may be detrimentally affected by air and marine pollution that
respects no ‘‘state’’ boundaries. (Ozone depletion and ‘‘global warming’’ –
climate change – are further examples in this category.)
Having drawn your attention to the environmental problems besetting our

planet by way of an introduction, it is clear that we now need to examine the
methods available to solve these problems. One of the means or instruments
with which to solve environmental problems is the application of legal norms
and principles. These rules and principles constitute the subject of
environmental law.
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1.2 Justification for studying legal rules relating
to the protection of the environment
Have you ever wondered why it is so important to protect the environment?
The authors Bell and McGillivray put forward five ‘‘points of justification’’ that
could (and should) justify the study of the subject of environmental law
(2006:3–4).
The five considerations are as follows:

1. The importance of the environment
A key consideration is the general recognition that the environment is
important and that efforts should be made to protect it. To a great extent,
the protection of the environment is perhaps the biggest ‘‘contemporary
issue’’ in the 21st century. In both policymaking and decision-making
across a wide range of issues, environmental considerations are central.
Moreover, there is a growing perception that environmental
considerations are ‘‘integral to all aspects of life’’. Evidence of the
importance of the environment is also found in those issues that pose a
risk to the environment and require specific responses. Can you think of
and name such issues?
2. The major challenge of protecting the environment

Globally, the environment is faced with considerable problems, which
require responses and solutions. These problems include climate change,
the destruction of the ozone layer, acid rain, deforestation and toxic waste.
The challenge is also significant in terms of the ‘‘range of problems and
issues’’ the environment faces, such as air pollution, water pollution, noise
pollution, lack of and/or fragmented waste management, radioactivity, the
overuse of pesticides and the need to conserve wildlife (think, for
example, of the scourge of rhinoceros poaching in South Africa).
Moreover, the challenge is enormous ‘‘in terms of the knowledge and
skills required to understand a particular issue’’ (Bell & McGillivray
2006:4). The authors explain that this major challenge relates to the fact
that ‘‘law", in general – and environmental law, in particular – is only one
element in a chiefly ‘‘cross-disciplinary topic’’ and that, as a result, some
understanding of ‘‘the scientific, political, and economic processes
involved in environmental degradation’’ is also required (ibid).
It is therefore not surprising that the protection of the environment is high
on most peoples’ list of priorities. (Think, for example, of the many NGOs
(non-governmental organisations) that are active in the field of
environmental protection, for example Greenpeace, Greenpeace Africa,
Sea Shepherd, the Endangered Wildlife Trust (EWT) and the World Wide
Fund for Nature (WWF), and their wide range of activities.) Hence,
environmental protection is a major challenge politically.
3. In the management of the environment, law is central

Notwithstanding the problem of determining the ‘‘exact scope and
definition of environmental law’’ (the topic of the next study unit),
5
environmental law is the principal tool with which to manage the
environment. To a certain extent, this certainty ‘‘merely reflects the
regrouping or re-categorization of matters that have always been there’’
(ibid). An example would be the use of ‘‘nuisance control’’, well-known in
private law, in combating noise pollution.
4. The immensity and complexity of environmental laws

Over and above the recognition of an environmental right (s 24 of the
Constitution of the Republic of South Africa, 1996), the South African
Parliament adopted a number of Acts, varying in complexity and geared
towards the protection and management of the environment, for example
the National Environmental Management Act 107 of 1998 (NEMA) and the
so-called sectoral environmental management Acts (SEMAs), such as the
National Environmental Management: Biodiversity Act 10 of 2004. (You
will learn more about these SEMAs in the final postscript to this study
guide.) Apart from national legislation, the nine provinces are also
empowered to pass legislation dealing with environmental protection.
While policy guidelines are, strictly speaking, not laws, they are issued by
the state department that deals with environmental matters and contribute
to the number of rules and regulations for managing the environment. (We
will elaborate on this matter in the study unit dealing with constitutional law
and the environment.)
5. More frequent use of the law in environmental disputes

According to the authors, the public increasingly views the results of
‘‘’environmental’ decisions as unsatisfactory’’. Put differently, there is a
general perception that the policies and procedures used by decision
makers are ‘‘failing the public and the environment’’ (ibid). This has led to
the increasing use of law by environmental groups as ‘‘an alternative to
direct action’’ (ibid). Law has also been used by local residents to put
pressure on the planning system to protect their own personal and
property interests against ‘‘unwelcome developments’’ (ibid). This
observation is also true of the situation in South Africa, if you consider
how often ratepayers approach the courts regarding environmentally
unsound developments in their suburbs or communities.
1.3 The meaning of the term ‘‘environment’’

List a few items that you think are included in the term
‘‘environment’’ and indicate who (either persons or bodies/
Activity 2 institutions) you would recommend to assist with the
protection, conservation and/or management of the
environment.
6
Under the term ‘‘environment’’, you could have included the natural environment –
water (rivers, ground water, wetlands and oceans), air, soil, forests, mountains,
animals and plants/flora and fauna – and the spatial environment – cities, towns,
villages and rural areas.
To protect or manage these environments, the cooperation of governments,

communities, the business sector and especially individuals is needed. In many
cases, international cooperation – that is, cooperation across state borders – is
required for effective conservation and management (e.g. marine and air pollution
control).
In listing the environmental problems that may affect you, your community or the
entire planet, you must have realised that determining whether the environment is
polluted or requires protection depends largely on what we perceive as the
‘‘environment’’. Moreover, in an effort to determine the meaning and the scope of the
term ‘‘environment’’, you have probably concluded by now that the word
‘‘environment’’ can mean different things to different people and professions. To
complicate matters even further, the question as to what exactly constitutes the
environment can be examined from different perspectives.
1.3.1 A wide/expansive perspective

When consulting a dictionary to find the meaning of the term ‘‘environment’’,
we find the following:
The Collins English dictionary: Millennium edition (1998) defines the
noun ‘‘environment’’ as ‘‘1 external conditions or surroundings, esp. those
in which people live or work. 2 Ecology. The external surroundings in which
a plant or animal lives, which tend to influence its development and
behaviour’’.
The Compact Oxford English dictionary (2005) defines the noun

‘‘environment’’ as ‘‘1 the surroundings or conditions in which a person,
animal, or plant lives or operates. 2 (the environment) the natural world,
especially as affected by human activity’’.
From the dictionary definitions of ‘‘environment’’, we learn that the term
primarily concerns the external conditions or surroundings within which
human beings live and/or operate and which influence their lives and
existence. In other words, the term ‘‘environment’’ refers to the
interrelationship between human beings and their surroundings.
In South African legislation that preceded the introduction of the new
constitutional order in 1994, we also encounter such a wide definition/
expansive understanding of the term ‘‘environment’’. Section 1 of the
Environmental Conservation Act 73 of 1989 (ECA) defined ‘‘environment’’ as
7
‘‘the aggregate of surrounding objects, conditions and influences that
influence the life and habits of man or any other organism or collection of
organisms’’.
In this definition we again find a reference to the interrelationship between
human beings and their surroundings. In this sense, ‘‘environment’’ is a
relative term in that it should be considered in relation or in proportion to
something else (Compact Oxford English dictionary 2005).
In its most extensive interpretation, ‘‘environment’’ means the following:
. natural environment – in the strict sense, the natural world in a pure state,
but more generally referring to renewable (air, water, animals) and non-
renewable (soil) natural resources
. spatial environment – man-made and natural areas (i.e. suburbs/
neighbourhoods, villages, towns, cities, countries) and specific natural
landscapes (mountains, wetlands, rivers, seashores)
. social (sociological) environment – comprising other people (family,
group/community, society)
Other components of the environment that are included in such a wide

approach are
. the economic environment
. the cultural-historical environment
. the built environment
. the political environment
. the labour or work environment
We find such an extensive interpretation of the concept ‘‘environment’’ in the

White Paper on Environmental Management Policy for South Africa (GN 749 in
GG 18894 of 1998-05-15). It states:
The word environment refers to the conditions and influences under which
any individual or thing exists, lives or develops. These conditions and
influences include: the natural environment including renewable and non-
renewable natural resources such as air, water, land and all forms of life; the
social, political, cultural, economic, working and other factors that
determine people’s place in and influence on the environment; natural and
constructed spatial surroundings, including urban and rural landscapes and
places of cultural significance, ecosystems and the qualities that contribute
to their value (1998:5).
We also come across a broad understanding of the concept ‘‘environment’’ in

South African case law. Claassen J in BP Southern Africa (Pty) Ltd v MEC for
Agriculture, Conservation, Environment and Land Affairs 2004 5 SA 124 (W) (a
case dealing with the content of s 24 of the Constitution, which is the topic of
discussion in the next study unit) (the decision is in your e-reserve) held that:
... South Africa chose to embark upon the extensive approach to
environment by giving it a comprehensive definition, which is as all
embracing as may be imagined. The broad definition of ’environment’ in my
8
view would include all conditions and influences affecting the life and habits
of man. This surely would include socio-economic conditions and influences
(par 37).
Viewed from this wide perspective, ‘‘environment’’ would then include almost
everything that may positively or negatively influence our human existence or
our quality of life. There is obviously a weakness to such a wide perspective on
‘‘environment’’. Drawing the boundaries as to what constitutes ‘‘environment’’
so wide that virtually every topic imaginable is seen as creating an
environmental issue undermines any effort to delineate the scope of
environmental law. Similarly, since the law regulates a person’s relationship
to this wide ‘‘environment’’, all law would (and could) be considered
environmental law. Consequently, the development of environmental law as
a distinct field of law would be pointless. According to Bell and McGillivray
(2006:5), the danger is that instead of a separate and independent subject/
discipline known as ‘‘environmental law’’, the subject ‘‘becomes ‘The
Environment and the Law’ ’’.
1.3.2 A narrow/restricted perspective

Other perspectives on the term ‘‘environment’’ are narrower and relate only to
certain components of the comprehensively defined ‘‘environment’’. One such
point of view refers only to the natural environment (i.e. it excludes social,
cultural, economic and most facets of the spatial environment) and stands in
contrast to the human-centred (anthropocentric) approach. Although
‘‘natural’’ can also be interpreted in a narrow or wide sense, it usually refers
to natural resources, and this may have influenced the view that
‘‘environment’’ should be restricted to the natural environment.
However, the natural environment has been modified by human beings to
such an extent that we can no longer speak of a natural environment in the
strict sense. Perhaps the closest thing to a natural environment in most
countries, especially developed countries, is a wilderness area, as opposed to
areas where humans and their work dominate the landscape. It follows that
such a limited approach would unrealistically restrict our conservation efforts
to the strictly natural environment. Of course, this is not in line with the
prevailing philosophy that conservation is not an end in itself, but is ultimately
aimed at fulfilling human needs.
This reality (i.e. where different people ascribe different meanings to the term
‘‘environment’’) is a factor that also complicates the duties, functions and
powers of the professional or administrator who operates in the environmental
sphere – be it the environmental lawyer, the environmental manager, the
environmental consultant, the environmentalist/ecologist or the environmental
economist since the environment always interacts with human beings.
Read through the explanation of the two perspectives on the

term ‘‘environment’’ carefully and then make a list of all the
Activity 3 points you will have to bear in mind when explaining to
someone what the ‘‘environment’’ is.
9
Next, in a brief paragraph or two, explain the drawbacks/
shortcomings (if any) you can detect in each of the
approaches to the concept.

You have enough information at hand to compile such a list and to write a paragraph
or two.
1.3.3 Towards a more realistic demarcation of

‘‘environment’’
The concept ‘‘environment’’ cannot be avoided if we are to clarify the nature
and the scope of environmental law and environmental management.
However, we have indicated the disadvantages of using the term either too
widely or too narrowly.
Fortunately, the National Environmental Management Act 107 of 1998 (NEMA)

contains a more realistic perspective on the term ‘‘environment’’. (The Act was
adopted to give effect to the environmental right provided for in the
Constitution – s 24.) In section 1 of NEMA (‘‘Definitions’’), ‘‘environment’’ is
defined as
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.
From the wording of this definition, it has been inferred that ‘‘environment’’
includes ‘‘our natural surroundings and those economic entities and social
structures that determine to a large degree both our being and our well-being
in the world’’ (Van der Linde & Basson 2010 CLOSA 50–11).
There are still many arguments for and against specific interpretations of the
term ‘‘environment’’. Nevertheless, there is general agreement that at its core,
the term ‘‘environment’’ refers to the earth’s natural resources, both
renewable and non-renewable. These resources are the object of current
10
conservation and pollution-control efforts (through national legislation and
other methods), and it is with regard to these natural resources that attempts
are being made to reconcile human development with conservation.
But, in the final instance, the meaning of ‘‘environment’’ is a political/policy

question that evokes different opinions. This is the reason for Bell and
McGillivray’s statement that ‘‘environmental law is a political discipline’’
(2006:12) in both a narrow and a wide sense. In the narrow sense it refers to
the major differences that can be noticed between political parties as to the
‘‘correct policy to apply’’. The authors (Bell & McGillivray) explain that the
differences do not normally refer ‘‘to the ends to be achieved, but to the
methods to be adopted in doing so and the costs to be incurred’’.
Environmental law is also political in the wide sense in that it involves the
making of ‘‘policy decisions about the best way to achieve certain objectives’’
(Bell & McGillivray 2006:13). Therefore, what is regarded as environmental law
or environmental conservation and management may differ from time to time
and from one country to another.
The parameters of the term are obviously evolving and it would therefore be
unwise to attempt to formulate a fixed definition of the term. Although
sufficient clarity exists regarding its essential core, the term must to some
extent be regarded as open-ended and still developing.
Later in the guide (when we examine the content of the environmental right) we
will see that the uncertainty concerning the parameters of the term
‘‘environment’’ has also had an influence on the content and the
interpretation of the environmental right embodied in section 24 of the
Constitution.
Up until now we have been examining the variable content of the term
‘‘environment’’. Next we must examine the need to protect the environment.
This leads to the following questions:
1. Why do we protect the environment?

2. What are the environmental problems we have to deal with?
3. How do we protect the environment?
You will see that answers to these questions may be more easily provided than
implemented. One of the reasons for this difficulty is that the protection of the
environment generally involves the weighing up of conflicting ethical interests.
Put differently, since the protection of the environment is founded on various
ethical views, the justification of such protection will vary.
11
1.4 Why do we protect the environment?
1.4.1 General
Return to the newspaper article reproduced at the beginning

of the guide. Do you detect any issue about the term
Activity 4 ‘‘environment’’ in the scenario? Explain in your own words.
Write down the various role-players in the scenario. How
would you characterise their respective views on or
perception of the concept ‘‘environment’’?

It is against the background of scenarios such as the one described in this
newspaper article that we are confronted with a dilemma when we ask questions
such as: Why do we protect the environment and why is the protection of the
environment important?
The environmentalists would be up in arms about the possible and real impact the
building of the toll road would have on the environment. They would remind us of the
soil erosion, the possible water pollution, the potential threats to endangered animal
and plant species in the area of the proposed road, the air pollution resulting from
excessive dust, and so on. (You can add your own thoughts on other dangers
confronting the environment.)
For the high numbers of unemployed people in those areas, the building of the road
and other accompanying activities would offer exciting possibilities of employment
and improvement in their quality of life (think of some other possibilities the building
of a new road would provide and add these to the list – a clinic, perhaps?).
Executives of the construction firm would be quick to mention the improvement in

the quality of life of the people in such areas. They would also remind us of the huge
demand for better infrastructure in South Africa. (Once again, think from their
perspective and add more possible advantages.)
Having read the scenario as depicted in the earlier newspaper article, you
would undoubtedly have realised that there are conflicting interests involved.
More significantly, the interests appeal to our sense of what is right and decent
– our ethical convictions, in short. So how do we balance or weigh up these
conflicting ethical interests?
12
It is in this context that the philosophical basis of the question as to why we
ought to protect the environment arises. It can therefore be said that the
question relates to our ethical convictions or behaviour, such as whether a
certain action is good, acceptable (right), decent/proper or moral.
The meaning of the word ‘‘ethic(s)/ethical’’

The Compact Oxford English dictionary (2005) defines ethics as ‘‘1 the
moral principles that govern a person’s behaviour or the way in which an
activity is conducted. 2 the branch of knowledge concerned with moral
principles’’. The adjective (as in ‘‘ethical demands’’) is defined as ‘‘morally
correct’’ by the same dictionary. The adjective ‘‘moral’’ (as in ‘‘moral
principles’’) is defined as ‘‘1 concerned with the principles of right and
wrong behaviour. 2 based on or following the code of behaviour that is
considered socially right or acceptable: they have a moral obligation to
pay the money back’’.
The Collins English dictionary: Millennium edition (1999) defines ethics as
‘‘a social, religious, or civil code of behaviour considered correct, esp. that
of a particular group, profession, or individual’’ and further as ‘‘the moral
fitness of a decision, course of action, etc.: he doubted the ethics of their
verdict’’.
In other words, ethical behaviour is behaviour that most people in the
community think is right, acceptable and decent.
There are several ethical foundations for the protection of the environment,
and they all provide a basis on which the individual can decide whether a
course of action, which requires human beings to change/modify their
environment, is acceptable. However, bear in mind that
. moral philosophies deal with relationships between individuals and

relationships between societies, and have existed for millennia
. the ethics of environmental protection seek to provide a basis for the
relationship between human beings and their surroundings (their world),
but these ethical norms have been slow to develop
We will next consider three ethical approaches to the protection of the

environment, namely
. anthropocentrism (a ‘‘human-centred environmental ethic’’ – Glazewski

2013:8)
. biocentrism (an eco-centred or ‘‘life-centred approach’’ – ibid)
. sustainable development (a combination of the ‘‘human-centred
environmental ethic’’ and the eco-centred or ‘‘life-centred approach’’ –
an integration of the two ethical approaches)
13
1.4.2 Anthropocentrism
Please refer to your e-reserve for Glazewski J ‘‘A philosophical and ethical
basis for environmental law?’’ in Environmental law in South Africa (2013:7–9).
NOTE: THIS ABSTRACT MUST BE STUDIED AS AN INTEGRAL PART OF
YOUR STUDY MATERIAL.
1.4.3 Biocentrism (also referred to as ecocentrism)

Please refer to your e-reserve for Glazewski J ‘‘A philosophical and ethical
basis for environmental law?’’ in Environmental law in South Africa
(2013:9–10).
1.4.4 The ethic of sustainable development

We are all familiar with the alarming statistics on increasing environmental
degradation as a result of overpopulation, poverty, disharmony in the
relationship between humanity and the earth, the collective impact of many
minor human acts, and the emphasis on specialisation – which often ignores
the many elements of the total problem. Therefore, in developing the
‘‘sustainable development’’ ethic, the underlying theme has been that
environmental deterioration leads to a reduction in the quality of life for all
people – both for present and future generations.
In support of this ethic, national and international efforts have been

concentrated on fostering human responsibility for the earth in order to
secure a commitment to an ethic for sustainable living and to integrate
conservation and development. Under the heading ‘‘Principles of a
sustainable society’’ in the Second world conservation strategy: Caring for
the earth (1991:8), this ethic was described as follows:
Living sustainably depends on accepting a duty to seek harmony with other
people and with nature. The guiding rules are that people must share with
each other and care for the Earth. Humanity must take no more from nature
than nature can replenish. This in turn means adopting life-styles and
development paths that respect and work within nature’s limits. It can be
done without rejecting the many benefits that modern technology has
brought, provided that technology also works within those limits. This is a
new approach to the future, not a return to the past.
The World Commission on Environment and Development (WCED) (generally

known as the Brundtland Commission), in its report entitled Sustainable
development: A guide to our common future (1987), indicated that sustainable
development is closely linked with two key components:
. the concept of needs, in particular the essential/basic needs of the world’s

poor (the ‘‘needs’’ relate to food, water, clothing, shelter and employment)
14
. the idea of limitations, which are imposed by technology and society on
the ability of the environment to meet such needs (‘‘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’’)
The sustainable development approach to the protection of the environment

has been the central one in international environmental law over the last
twenty-odd years – with the Rio Earth Summit (1992) and subsequent
international declarations endorsing the principle of sustainable development.
The ethic of sustainable development is particularly important in the new
South African constitutional dispensation, since it supports and promotes the
establishment and growth of a ‘‘new democratic order’’, focused on, among
other things, the improvement of the ‘‘quality of life of all citizens’’ (see the
Preamble to the Constitution). It is further explicitly recognised in the Bill of
Rights (s 24) and forms the basis of new environmental legislation and policy.
In simple and general terms, it relates to meeting the basic needs of all
(‘‘development that meets the needs of the present without compromising the
ability of future generations to meet their own needs’’, as defined by the
WCED in the report mentioned above (Sustainable development: A guide to
our common future 1987)), and extending to all the opportunity to satisfy their
aspirations for a better life. It also implies acceptance of consumption
standards that are within the bounds of ecological possibility and to which all
can aspire.
In a word, it endorses the appreciation that there is an inextricable link

between human socio-economic systems and the environment. In the
National Environmental Management Act 107 of 1998, ‘‘sustainable
development’’ is defined in section 1 to mean
... the integration of social, economic and environmental factors into
planning, implementation and decision-making so as to ensure that
development serves present and future generations.
PLEASE NOTE: You will understand these different approaches much

better once you have studied Theme II and the
discussion of section 24 of the Constitution.
In Fuel Retailers Association of Southern Africa v Director-

General Environmental Management, Department of
Activity 5 Agriculture, Conservation and Environment, Mpumalanga
Province 2007 10 BCLR 1059 (CC), 2007 6 SA 4 (CC) (the
decision is reproduced in your e-reserve), the
Constitutional Court had the opportunity to interpret the
‘‘sustainable development’’ principle.
15
Read the decision (it is part of your prescribed study
material) and make notes/summarise the judgment under
the following headings:
(1) The facts of the decision

(2) The court’s interpretation of the ‘‘sustainable
development’’ principle (looking at both the majority
and the minority judgments)
(3) My understanding of the principle ‘‘sustainable
development’’
(4) Does my understanding and the Constitutional Court’s
interpretation of the principles differ from previous
attitudes towards the environment?
(5) Does the ethic of sustainable development allow for a
narrow or wide interpretation of the term
‘‘environment’’?
HINT: Remember that the complexity of the terms ‘‘environment’’ and ‘‘sustainable
development’’ and the interaction between humans and their environment will
considerably influence your answers. The function of the law is, after all, to
create harmony in society, regulating the activities of human beings within the
environment (e.g. how they should manage their activities in respect of the
environment).
Note, further, that since the Fuel Retailers decision will feature in this guide again
and the ‘‘sustainable development’’ principle will be discussed in greater detail later
in this guide, these questions have been set mainly to encourage you to read the
prescribed decision. A further purpose of the questions is to assist you in gaining a
clear understanding of (a) a principle that is fundamental to South African
environmental law with reference to an influential Constitutional Court decision
and (b) how the court has applied the principle to a particular situation.
1.5 Classification of environmental problems

We have repeatedly said that human action harms the interrelationship
between human beings and nature in various ways. You will also agree that
some damage done by human beings cannot be reversed, either by human
conduct or by nature (e.g. the long-term effects of soil erosion, desertification
16
and deforestation). Before considering ways and means of solving
environmental problems, we believe it is a good idea to identify the
environmental problems confronting us.
Problems emanating from environmental damage may be divided roughly into

four categories according to the different approaches required for their
effective solution. They are as follows:
. degradable wastes
. persistent wastes
. reversible biological and geophysical impacts
. irreversible biological and geophysical impacts
1.5.1 Degradable wastes

This category includes the pollution of water by organic wastes, the pollution
of the air by products of combustion, thermal pollution and noise pollution.
These problems can usually be resolved successfully within existing legal,
economic and societal frameworks.
1.5.2 Persistent wastes

These substances are removed very slowly from the biosphere by natural
processes. Examples include heavy metals (lead, cadmium and mercury),
certain human-produced chemical compounds (e.g. DDT and plastics) and
certain types of nuclear waste. These problems require a different treatment
from that described for degradable wastes, and technological solutions are
not always available. Strict administrative control is therefore needed to deal
with persistent wastes, and problems caused by these wastes should be
viewed in a serious light.
1.5.3 Reversible biological and geophysical impacts

The distinction between reversible and irreversible (see below) impacts is not
clear-cut and is therefore open to criticism. Reversible impacts could include
agriculture, road-building, or opencast mining operations in large, stable
ecosystems. The effects of such activities are likely to deprive communities of
environmental amenities and could lead to a reduction in the quality of living.
But, with adequate planning and timely expenditure, such impacts can be
minimised or maintained at acceptable levels.
The problems are serious because social and political indifference leads to
vast areas of the earth being degraded to an extent that damage is now also
taking place in unstable, fragmented areas, which do not allow for the reversal
of actions. These problems emphasise the need for human actions to be in
harmony with natural processes.
1.5.4 Irreversible biological and geophysical impacts

The most common of these problems is the extinction of animals, plants and
17
fragile ecosystems. Nowadays, possible changes in the world’s climate and
weather resulting from certain actions, as well as the exploitation of some of
the earth’s resources to the point of extinction, require urgent attention.
As a result of the large-scale environmental changes that may be caused by

these problems, international – rather than local or national – control is
required. Within this category, major social and political adjustments will
ultimately be required to order life within acceptable limits.
Return to the newspaper article reproduced at the beginning

of the guide. Do you detect a particular environmental
Activity 6 problem (either potential or real) in the scenario? Explain in
your own words and provide example(s) of this class/
category of problem.

Apart from possible ‘‘irreversible biological and geophysical impacts’’, you should
be able to find examples of all the other classes/categories of environmental
problems that may arise when the road construction activities referred to in the
newspaper report commence.
PLEASE NOTE: The four categories identified by Richard Fuggle way

back in 1975 do not represent the only way of
classifying environmental problems. A simpler
classification is to distinguish between the specific
kinds of pollution that are generated and the specific
resources that are conserved (Rabie 1976:4). However,
as we will see, the ‘‘sectoral’’ environmental legislation
adopted in South Africa to protect and manage the
environment seems to acknowledge the four categories
(see below).
1.6 How to protect the environment: legal norms

and standards to manage and protect the
environment
By way of an introduction to this study unit, we referred to the Time report of
nearly a quarter of a century ago on the dangers our planet then faced. We
then examined what the term ‘‘environment’’ comprises and why we protect
our environment – looking at that question from an ethical point of view. We
also considered the various categories of environmental problems we
encounter today.
18
What should we do to protect the environment?
To answer this question, we need to acknowledge that the relationship

between human beings and their environment is a complex one, requiring a
holistic and interdisciplinary study. (Refer back to the views of Bell and
McGillivray, where they describe the protection of the environment as a ‘‘big
challenge’’.)
1.6.1 The legal norms and standards governing the

protection of the environment: some general
remarks
In this module we will concentrate on the legal relationship between human
beings and the environment, which includes the legal management of this
relationship. In other words, we will focus on how (the) law minimises,
eliminates or at least manages the challenges and threats to the environment
caused by human actions. In essence, we will examine the South African legal
framework (both at national and international level) that is designed to deal
with environmental problems.
Environmental law provides the norms and standards for solving and/or
preventing environmental problems and ideally should also provide a sound
basis for environmental policy, planning and management. The state
departments responsible for the administration of environmental affairs have
a vast network of administrative control measures at their disposal, which may
be incorporated into the legal framework or may operate on a purely
administrative basis.
From a legal point of view, different strategies should be adopted to deal with
the different categories of environmental problems. For example, every
person’s right to an environment that is not detrimental to his or her health or
well-being is protected under section 24(a) of the Constitution. Therefore,
when air pollution is posing a risk to your health, you may approach the court
to protect your right to a clean and healthy environment.
Other fundamental rights that play an important role in the protection of the
environment include the right to just administrative action (s 33)
(‘‘administrative justice’’ in the terminology of the interim Constitution);
access to information (s 32); access to the courts (s 34); the right to health
care, food, water and social security (s 27); the right to property (s 25); the
right to dignity (s 10) and life (s 11); and the right to equal protection of the law
(s 9).
The scope, nature and application of the rights should be considered in the
context of the limitation of rights (s 36) and the interpretation clause (s 39). We
should also not forget the importance of section 38. Through this section (the
locus standi/legal standing provision), the environmental right and the
abovementioned rights that play a role in the protection of the environment
can be enforced. (Later in this guide we will return to this extended standing,
provided for in s 38.).
19
Section 24(b) of the Constitution makes provision for legislation to protect the
natural environment and to secure ecologically sustainable development –
‘‘reasonable legislative measures’’ must be taken to achieve this purpose. As
a result, a number of Acts were enacted, including the ‘‘umbrella’’ legislation,
the National Environmental Management Act 107 of 1998; the Marine Living
Resources Act 18 of 1998; the National Water Act 36 of 1998; the National
Forests Act 84 of 1998; the National Heritage Resources Act 25 of 1999; and a
number of ‘‘specific’’ environmental management Acts, such as the National
Environmental Management: Protected Areas Act 57 of 2003; the National
Environmental Management: Biodiversity Act 10 of 2004; the National
Environmental Management: Air Quality Act 39 of 2004; the National
Environmental Management: Integrated Coastal Management Act 24 of
2008; and the National Environmental Management: Waste Act 59 of 2008.
Ensuring that laws that are adopted to protect the environment are complied
with and enforced requires another strategy (possibly the most important) in
dealing with environmental problems. In the case of pollution (degradable
waste, for example), a penalty will apply after the pollutant has been emitted.
The penalty may take the form of a criminal prosecution, a civil remedy (such
as an action for damages), seizure and forfeiture, or effluent taxes. These
penalties may also apply in the case of persistent wastes (e.g. plastics and
nuclear waste (hazardous waste)), although in the case of both of the above
classes, the ultimate purpose of legal sanctions should be the effective
prevention of pollution.
With regard to both the emission of pollutants and the prevention of pollution,
the National Environmental Management: Waste Act 59 of 2008 is pertinent.
However, if the detection of pollution is doubtful or if effective enforcement/
compliance is not ensured, there is a real threat that the relevant laws may
have a negative result (e.g. people may tend to think that the problem has
been solved once a law has been passed).
Yet another strategy to deal with environmental concerns is to submit to the

pertinent rules found in international law. South Africa has signed a number of
international legal instruments that protect the environment and is therefore
obliged to follow these rules. For example, the Basel Convention regulates the
transboundary movement of hazardous waste, the Convention on the
Protection of Biological Diversity protects life-support systems and natural
resources and the Convention on International Trade in Endangered Species
(CITES) prohibits the illegal trade in endangered species.
In view of the inclusion of an environmental right in the South African

Constitution and the changed philosophy and approach towards the
environment (grounded in sustainable development), we need to adopt a
holistic approach towards the environment and be aware of the
multidisciplinary and long-term nature of managing sustainable development.
1.6.2 Environmental management: some general remarks

To achieve the goals of sustainable development, a special plan or set of
controls is required to regulate our actions. When this plan or set of controls is
implemented to achieve our desired goals, we speak of managing our tasks,
20
in this instance, environmental management. In the first edition of
Environmental management in South Africa (1992:92), Fuggle and Rabie
describe this concept as follows:
... [W]hen management skills and techniques are applied to care for the earth
so as to achieve the goals inherent in the nine principles (required for
building a sustainable society) ... we are dealing with environmental
management.
In the second edition of this publication, Fuggle and Rabie’s Environmental

management in South Africa (Strydom & King (eds) 2009), the authors Kotzé
and Nel, in a chapter entitled ‘‘Environmental management: An introduction’’,
maintain that the concept ‘‘environmental management’’ remains ‘‘poorly
defined’’ (at 7). They then proceed to prove their point by describing the
various ways in which the concept has been defined in the literature up till
now. They further assert that rather than defining the concept itself, it has been
explained by focusing on the characteristics of both environmental managers
and environmental management and the challenges of environmental
management (ibid). They emphasise that one of the challenges of
environmental management is the ‘‘interconnectedness of environmental
elements’’ and ‘‘the diversity of environments and environmental conditions’’
(at 13).
Although they construe ‘‘environmental management’’ as a concept that is still

evolving (at 10), they highlight some features of environmental management.
According to them (at 17),
environmental management is ... fundamentally value driven, requiring
trade-offs to be made between diverse and competing needs, interests and
elements, as an optimum balance needs to be achieved amongst competing
issues, needs and value systems.
For our purposes, it is sufficient to state that (sustainable) environmental

management is a vast undertaking, encompassing general goals and specific
objectives, which must be formulated with due regard to ethical, socio-
economic, cultural and political norms. To realise these goals and objectives,
legislation and other regulatory measures are needed. Furthermore, economic
and technical decisions, as well as evaluation and assessment decisions,
should also be taken in this regard.
The activities listed above are performed by a broad spectrum of bodies,

institutions and individuals, which include the whole spectrum of government
and other bodies and individuals who exercise personal decisions. As was
implied previously, these decisions and activities require moral, social,
political, legal, scientific, technological and economic expertise, thus
requiring the input of many disciplines.
1.7 The inherent link of environmental law with

equity, transformation, redress and justice
Please refer to your e-reserve for Kidd M ‘‘The meaning of environmental
21
justice in South Africa’’ in Environmental law (2011:301–302) and your e-
reserve for Glazewski J ‘‘Environmental justice’’ in Environmental law in South
Africa (2013:20–22).

Environmental law is infused with notions of equity, transformation, redress

and justice. These notions play a critical role in current environmental
management in South Africa and will play a critical role in future environmental
management. What follows is a short description of where these notions are to
be found and how they are interlinked within South African environmental law.
South Africa has an immense challenge to meet the basic human needs of
millions of people while at the same time keeping the country’s environmental
resources intact. While a number of important principles form the basis of
environmental law, it is the principle of ‘‘sustainable development’’ that
arguably has the biggest impact on the management of the environment. The
principle of ‘‘sustainable development’’ was defined by the World Commission
on Environment and Development as ‘‘development which meets the needs of
the present without compromising the ability of future generations to meet
their own needs’’ (WCED Our common future 1987 at 43). This definition
advances two further concepts, namely (Kidd 301)
i. that there is a need to meet the basic needs of humanity (food,
shelter, clothing and employment)
ii. that ‘‘the limits to development are not absolute but are imposed by
present states of technology and social organization and by their impacts
on environmental resources and upon the biosphere’s ability to absorb
the effect of human activities’’ (WCED Our common future 1987).
The idea of equity is at the centre of sustainable development because it

(equity) embraces both (i) the concept of inter- and intragenerational equity
and (ii) the need to meet basic human needs (Field née Humby at 415 and
419). This, in turn, informs notions of transformation and redress because
‘‘basic human needs cannot be met if there is no transformation’’ (Kidd 301
refers to Field at 416). Put differently, transformation is needed in addressing
the ‘‘deep fault line that divides human society between the rich and the poor’’
or redressing the unequal distribution of harm previously caused (Kid at 301–
302 and Field at 416, quoting the Johannesburg Declaration on Sustainable
Development 2002).
NEMA includes the notion of environmental justice by stating 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’’
((s 2(4)(c)). Kidd refers to Richard Hofrichter’s definition of environmental
justice as fitting for South Africa:
Environmental justice is about social transformation directed toward
meeting human need and enhancing the quality of life – economic equality,
22
health care, shelter, human rights, species preservation, and democracy –
using resources sustainably. A central principle of environmental justice
stresses equal access to natural resources and the right to clean air and water,
adequate health care, affordable shelter, and a safe workplace Environ-
mental problems therefore remain inseparable from other social injustices
such as poverty, racism, sexism, unemployment, [and] urban deterioration
(Kidd at 302 uses Richard Hofrichter’s ‘‘Introduction’’ at 4).
You should now have recognised that notions of equity, transformation,

redress and justice are part of the DNA of environmental law and are
therefore important for environmental management in South Africa.
SELF-EVALUATION
Return to the newspaper article reproduced at the beginning of this study guide
and reread it. Return to the Fuel Retailers case and take note of what the court
held about the scope and the nature of sustainable development.
Although nothing is said about ‘‘sustainable development’’ in the article, write
down (taking into consideration what the court said in Fuel Retailers regarding
sustainable development) what you view as major shortcomings/weaknesses in
the Minister’s rejection of the appeals against the construction of the toll road,
opening the way for the construction. Can you identify possible notions of equity,
transformation, redress and justice from both the newspaper article and the Fuel
Retailers case?
Comments on self-evaluation – feedback

HINT: This self-evaluation exercise is geared towards helping you to come to grips
with the issues addressed in this introductory study unit.
In answering this question, you need to consider matters such as the following:
R What do you understand by the term ‘‘sustainable development’’? State this by
way of introducing your answer.
R Does your understanding differ from earlier attitudes of other people towards
the environment?
R In the light of the ethic of sustainable development, do you prefer a narrow or
wide interpretation of the term ‘‘environment’’?
R Are you able to identify the elements of ‘‘environment’’ and the approach to
sustainable development in the definition of ‘‘environment’’ in NEMA?
R Return to the brief discussion of environmental management above and note
what has been written about ‘‘trade-offs". Do you think such a possibility could
have been considered?
23
R Return to the brief discussion of the inherent link of environmental law with
equity, transformation, redress and justice above. Can you indicate how these
notions are linked within environmental law?
To assist you in answering the question, you should also consult NEMA and the
Constitution, particularly section 24. (To answer this question in detail, you will need
to return to it after you have studied the next study units dealing with the nature of
environmental law and s 24 of the Constitution.)
1.7 Concluding remarks

Environmental management is a multidisciplinary activity in which the
competing interests of the economy, the environment and people’s quality
of life need to be balanced in order to satisfy the needs and aspirations of all
South Africans and future generations.
Environmental law is infused with notions of equity, transformation, redress

and justice and these notions play a critical role in current environmental
management in South Africa and will play a critical role in future environmental
management.
Since this module deals with environmental law, we will concentrate mainly on
the legal component of environmental management. The National
Environmental Management Act of 1998 is important in this regard. (More
information on environmental management is found in Theme III.)
In the next study unit we will be discussing the nature of environmental law in
South Africa and the sources of South African environmental law.
24
STUDY UNIT
2
Environmental law in South Africa
OVERVIEW
In this study unit we will be investigating the scope, the nature and the sources of
environmental law. One of the sources is international environmental law, which will be
mentioned in this study unit. In view of the importance of this source, however, a full study
unit (study unit 3) is devoted to the topic. Since the subject of environmental law is a
modern one, the sources are mainly legislative in origin (apart from the Constitution of the
Republic of South Africa, 1996). In the discussion of the sources of environmental law, we
explain the distinction between authoritative and persuasive sources. Since Green and
White Papers are an important persuasive source, they will be described and their function
explained.
The greater part of the study unit is devoted to a discussion of what Glazewski calls the
‘‘emerging principles of environmental law’’, what they are and their recognition in South
African framework legislation – the National Environmental Management Act 107 of 1998.
This exploration of the principles that guide environmental law is undertaken under the
heading ‘‘Distinctive principles guiding and supporting environmental law’’.
The study unit concludes with an overview of the history of environmental law to illustrate its
roots and to substantiate its present-day growth in importance and development.
By the end of this study unit, you should be able to
& explain why so many difficulties still exist in determining exactly what constitutes
environmental law
& discuss the scope of environmental law
& provide a brief and tentative definition of environmental law
& explain the nature of environmental law
& discuss the sources of environmental law
& identify (emerging) principles, norms and concepts unique to environmental law
and provide a brief explanation of the content of each of these principles
& take note of the landmarks in the history of modern environmental law
25
In this second study unit (part of Theme I), the scope, the nature and the
sources of environmental law, and the distinctive principles that guide and
support environmental law are discussed.
2.1 What is environmental law?

2.1.1 Introduction
In the previous study unit we noted that the term ‘‘environment’’ is a complex
one and that it is still evolving. The same is true of the legal subject known as
Environmental Law; many uncertainties still exist as to what exactly constitutes
environmental law. One of the uncertainties concerns the exact parameters
(i.e. boundaries/limits or scope) and the exact nature of the subject. Moreover,
there is some doubt about whether environmental law is a distinct branch of
law at all. This doubt results from the lack of unanimity on the exact scope and
nature of environmental law.
In trying to find out exactly what is meant by ‘‘environmental law’’, we need to

determine its scope and nature. Through this enquiry, we will also be able to
confirm whether environmental law constitutes a distinct branch of law.
2.1.2 Scope of environmental law

As we have seen, there is still some uncertainty concerning the parameters of
the term ‘‘environment’’. The same uncertainty and ambiguity applies to the
subject of environmental law. In investigating the ‘‘scope of environmental
law’’, we have in mind ‘‘the range of the subject matter that something [i.e.
environmental law] deals with’’(refer to the Compact Oxford English
dictionary 2005).
As a point of departure, you need to bear in mind that not every legal rule
relating to the environment constitutes environmental law. Environmental law
presupposes that a particular legal rule is aimed at or employed for the
conservation of the environment. Environmental conservation, in turn, is
concerned with the conservation or preservation of natural resources and the
control or limitation of environmental pollution (or, stated even more
categorically, the prevention of such pollution).
In modern-day terms, we refer to ‘‘environmental management’’rather than

‘‘environmental conservation’’, since environmental management includes
both conservation and prevention, and also reflects a necessary compromise
in terms of the crucial principle of (sustainable) development.
Rules of environmental law therefore ultimately relate to the management of

the environment. Kidd (2011:4) describes this view as the ‘‘conventional’’ way
of identifying environmental law.
Please refer to your e-reserve for Kidd M ‘‘The scope of environmental law’’in
Environmental law (2011:4).
26
Although the question has been raised as to exactly what subject matter is
eligible to fall under the heading of environmental management, the general
view is that it encompasses the following three core topics or areas of
concern:
. land-use planning and development

. resource conservation and utilisation
. waste management and pollution control (public health may be included
here too)
Please refer to your e-reserve for Glazewski J ‘‘The definition of ‘environment’

and the ambit of environmental law’’in Environmental law in South Africa
(2013:11–12), where the author discusses three core areas of concern in
environmental law.

2.1.3 Nature of environmental law

In view of the advent of the new constitutional dispensation in 1994 and the
inclusion of an environmental right (s 24) and other related rights in the Bill of
Rights, it is necessary to acknowledge the distinct public law – and, in
essence, constitutional law – component in South African environmental
law. What is more, when we discuss the sources of environmental law in the
following section, you will see that the Constitution of the Republic of South
Africa, 1996 and legislation constitute the bulk of environmental law.
Legislation as a source of environmental law has reinforced the view that
there is a strong component of public law in environmental law.
The range of legislation dealing with environmental issues comprises

parliamentary and provincial legislation, and by-laws made by local
authorities (municipalities) – in other words, original legislation. Also
included is so-called delegated legislation (subordinate legislation) – in
administrative law this was earlier termed ‘‘administrative legislation’’. This
network of legislation covers a vast range of topics, such as: the
environmental right; the principle of sustainable development; and the
establishment of protected areas and methods of assessment,
environmental policy/policies, regulations and directives by administrative
bodies for environmental management and control through administrative
processes.
Furthermore, as a result of state involvement in the administration of

environmental affairs (i.e. the management of the environment), we may
further argue that the greater proportion of environmental law falls squarely
within the sphere of influence of administrative law, which also forms part of
our public law system.
27
From your administrative law studies, you will remember that the public law
relationship is characterised by
^ an unequal (authoritative) relationship between a public (administrative)

body vested with state authority and an individual or another public body
or person in a subservient position
^ an individual or another public body or person in a subservient position
^ legislation as the primary source of public law
^ the authoritative public body acting in the public interest
Apart from the important administrative law and constitutional law public law
component of environmental law, environmental rules are also found in yet
another public law branch of the law, namely
. criminal law as a result of criminal sanctions for environmental offences/
crimes
Environmental law rules are also encountered in
. international law, where treaty law, in particular, regulates environmental

matters that are of global or regional concern (e.g. the Montreal Protocol
on ozone depletion, the Basel Convention on hazardous waste and the
Antarctica Treaty on the conservation of Antarctica). (See the section
further on where we discuss the impact of international law on
environmental law.)
Then again, environmental law rules are also found in the private law branch
of the law, for example, in
. private law generally, which provides remedies to combat environmental

nuisances and to obtain compensation for environmental damage (the law
of delict plays an important role in this regard)
. property law, since land-use practices and planning are fundamental to
environmental management
. insurance law, in cases of claims for environmental damage and with
regard to compulsory insurance
Viewing environmental law from this angle, we may well argue that
environmental law merely consists of a miscellany/assortment of legal rules
encountered in a number of conventional fields of law (that is, in the public,
private and international law systems in branches such as commercial law,
labour law, neighbour law, media law, welfare law, tax law and insurance law)
and is therefore not a distinct subject. However, a counter-argument may be
raised as to why environmental law is indeed a separate field of law. Although
principles found in the traditional branches of law are accommodated in
environmental law, they are united by a common objective or purpose – that of
protecting the environment and serving environmental conservation and
management. In the context of the environment, therefore, they have an
omnibus function.
28
NOTE: ‘‘Omnibus’’, in the context in which we use the word, means
‘‘dealing with, or providing for many different things or cases’’
(Collins English dictionary: Millennium edition 1999).
However, despite the initial uncertainty surrounding this discipline, much

attention has been focused on environmental law over the last few decades
(refer to 2.4 for a brief overview of the history of environmental law), and a wide
variety of legislation has been passed to deal with environmental problems.
Consequently, we may conclude that environmental law is indeed a distinct,
independent and separate legal discipline.
We should nevertheless not lose sight of Glazewski’s word of caution

regarding the many challenges facing the ‘‘new’’ discipline of environmental
law, inter alia, defining its ‘‘specific parameters more clearly’’ and nurturing
‘‘the development of emerging distinctive principles of the subject’’ (2005:10).
A cautious definition of Environmental Law

Environmental law is the collection of rules dealing with the
environment of human beings in order to – along with other
instruments – find solutions for existing environmental problems
and to prevent new environmental problems (authors’ own translation
of the definition provided by Van der Meijden 2008:19).
Another definition of environmental law

A body of law intended to protect the environment, by regulating
activities that cause pollution, such as fossil fuel emissions and the
dumping of wastes; by prohibiting certain inconsistent uses of land
designated as federal parkland; and by providing regimes of
protection for endangered species (Webster’s new world law
dictionary 2010).
1. Return to the newspaper article reprinted at the

beginning of this guide. Taking into consideration what
Activity 1 we have written about the scope and the nature of
environmental law, write a letter to the newspaper in
which you explain the role that environmental law can
and should play in the scenario.
2. We gave a definition of environmental law found in a
Dutch publication on environmental law. Now write down
your own definition of the legal discipline of
environmental law.
29
1. For a proper discussion of this question (an explanatory letter), you need to
make sure that you understand what the term ‘‘scope of a discipline’’ means
and that you are able to explain the concept. Secondly, you need to apply the
term to the set of facts in order to explain how environmental law has a role
to play with regard to the set of facts. You need to follow the same approach
in your explanation of the nature of environmental law in respect of the facts
in the newspaper article.
2. From the discussion of the scope and the nature of environmental law, you
should be able to formulate a definition of environmental law.
Before we examine what Glazewski refers to as the ‘‘emerging distinctive

principles’’ of environmental law, we need to explore the sources of
environmental law. Such an exploration is necessary for two reasons: Firstly,
it will enable you to understand where environmental law comes from (not to
be confused with the history of modern environmental law, though). Secondly,
the ‘‘distinctive principles’’ that Glazewski mentions, which we will examine in
2.3, have either found expression in or have been drawn from and developed
through the various sources of environmental law.
2.2 The sources of environmental law

Environmental law is made at both international level – international
environmental law – and national/municipal level.
At municipal/national level, we need to distinguish between binding/

authoritative and persuasive sources of environmental law.
Binding/authoritative sources
^ international law (international environmental law)

^ the Constitution of the Republic of South Africa, 1996
^ legislation
^ provincial legislation and local government legislation
^ case law/judicial precedent
^ common law
Persuasive sources
^ policy documents such as Green and White Papers

^ writings in books and journals expressing academic opinions
^ reports by ‘‘the state institutions supporting constitutional democracy’’,
such as reports of the Human Rights Commission
^ foreign law/comparative law
30
Next we need to have a closer look at these various sources, beginning with
an overview of the binding/authoritative sources of environmental law.
We will begin by providing a brief discussion of international law as a binding/

authoritative source of environmental law.
2.2.1 Binding/authoritative sources of environmental law

1. International law
In terms of section 39 (read with s 233) of the Constitution of the Republic of
South Africa, 1996, international law (public international law) is an important
source of environmental law: international environmental law rules are usually
found in treaties and customary law. States and international organisations
are the legal subjects of international law, which deals with environmental
matters that are of global or universal concern (e.g. pollution and climate
change). Moreover, international principles such as sustainable development
have played (and are still playing) an important role in the development of
South African environmental law.
With the emphasis on sustainable development, both internationally and in

South Africa, international environmental rules and standards are playing an
important role in creating harmony between human beings and their global
environment.
In terms of section 39(1)(b) of the Constitution, international law plays yet

another significant role, since it provides that where the interpretation of
fundamental rights is concerned (and it includes the environmental right
provided for in s 24), any court, tribunal or forum must consider international
law.
International environmental law is an important source of South African

environmental law and is discussed separately and in more detail in study
unit 3.
2. National/municipal law: The Constitution of the Republic of

South Africa, 1996
The Constitution is the most authoritative source of South African
environmental law. It is the supreme law of the country and its status is
therefore far greater than that of any other parliamentary or provincial
legislation.
In section 24 (which forms part of the Bill of Rights in Ch 2), the Constitution
makes provision for a fundamental environmental right (s 24(a)) and for
legislation and other measures to protect the natural environment and
sustainable development in general (s 24(b) will be discussed in study unit 4).
Section 38 contains a broadened locus standi requirement. These two
sections, in particular, have a far-reaching effect on the scope, application and
enforcement of environmental law.
31
Chapter 3 of the Constitution, entitled ‘‘Co-operative Government’’, (ss 40
and 41) also determines the division of environmental affairs between
national, provincial and local government spheres within the context of
cooperative government. (This particular topic will be discussed in study
unit 5.)
3. Legislation
3.1 The various categories of national environmental legislation

Legislation is the primary source of environmental law. One of the reasons
given for this is that environmental law is a relatively modern branch of public
law. A more convincing explanation is that since legislation is ‘‘readily
accessible and knowable’’ (Du Plessis 2002:22), it follows logically that
environmental law almost always has legislation as its source. All legislation,
including legislation dealing with environmental issues, must comply with the
provisions of the Constitution, however.
Note, further, that although the Constitution sets the standard for conduct, it
obviously cannot deal with every aspect of interaction between authorities and
individuals – nor with every form of interaction between individuals and their
environment. As a matter of fact, Parliament – the legislature – is often
expressly instructed to adopt legislation to give effect to a constitutional
provision. Legislation, in short, adds flesh to the bones of legal rules,
principles and values expressed in the Constitution. For example, the
Constitution requires that Parliament comply with its constitutional duty to
pass legislation dealing with the protection of the environment ‘‘for the benefit
of present and future generations’’ to make it effective (s 24(b) of the
Constitution).
With regard to environmental legislation, we can distinguish between various

categories of legislation, depending on the content of the particular
legislation. ‘‘Exclusive/general’’ legislation deals with the environment in
general (its management and governance). Such legislation is also called
‘‘environmental framework legislation’’.
Under ‘‘specific’’ legislation, we find legislation that deals with particular

facets or aspects of the environment and/or particular (natural) resources. In
addition, in this category we encounter legislation that primarily contains
environmentally specific legal provisions.
Note, too, that we also find legislation that contains environmentally specific
legal provisions or rules incidentally.
& Exclusive/general environmental legislation

This category refers to parliamentary legislation that is aimed exclusively at
environmental management/governance and that contains only
environmentally specific provisions.
The most important statute is the National Environmental Management Act
32
107 of 1998 (NEMA). The adoption and promulgation of this statute was
undoubtedly the most significant event on the environmental legislation
horizon in a long time.
This Act is an example of ‘‘environmental framework legislation’’ (Nel & Du

Plessis 2001:1). According to these authors, ‘‘environmental framework
legislation’’ is characterised by (2001:4)
(a) generic legal elements, (b) a flexible approach to address changing

circumstances, (c) dedicated sectoral-specific legislation as well as (d) the
inclusion of broad based environmental policy and principles. Environ-
mental framework legislation generally also endeavours to ensure: (a)
popular broad-based participation during its formulation phase, (b) co-
operative governance between all spheres and sectors of government, (c) use
of innovative integration of multiple environmental management tools and
instruments in order to (d) benefit the environment.
See the discussion of NEMA, study unit 6.
NEMA is prescribed study material. Take note of how it has

been set out. At this early stage of your study of
Activity 2 environmental law, merely list the various chapters of the Act
and explain, in one or two sentences in your own words, the
topic of each chapter of the Act.
NOTE: It is not necessary to repeat the headings of the
chapters verbatim. The point is that you need to
understand what each chapter deals with.
The purpose of this activity is simply to ease you into the contents of the Act, which –
together with the relevant provisions of the Constitution – forms the backbone of the
study of South African environmental law.
& ‘‘Specific’’ environmental legislation

In this category we first find the so-called sectoral environmental management
Acts (SEMAs). They are as follows (in chronological order)
Environment Conservation Act 73 of 1989

National Water Act 36 of 1998
National Environmental Management: Protected Areas Act 57 of 2003
National Environmental Management: Biodiversity Act 10 of 2004
National Environmental Management: Air Quality Act 39 of 2004
33
National Environmental Management: Integrated Coastal Management Act 24
of 2008
National Environmental Management: Waste Act 59 of 2008
We also find legislation dealing with specific (natural) resources, such as the
National Water Act 36 of 1998 and its ‘‘accompanying’’ Act, the Water
Services Act 108 of 1997, as well as the Lake Areas Development Act 39 of
1975. Further examples are the National Forest Act 84 1998, the National Veld
and Forest Fire Act 101 of 1998, the Marine Living Resources Act 18 of 1998
and the Mineral and Petroleum Resources Development Act 28 of 2002.
In this category we find legislation that deals with, for example, specific waste
management or pollution control problems. Examples are the Dumping at Sea
Control Act 73 of 1980 and the Prevention and Combating of Pollution of the
Sea by Oil Act 6 of 1981.
There is also legislation dealing with the protection of South Africa’s wildlife,
namely, the National Parks Act 57 of 1976 (as amended).
In the sphere of South Africa’s agricultural land, we find an Act dating from the
pre-1994 era, the Conservation of Agricultural Resources Act 43 of 1983 (as
amended).
We also find legislation dealing with substances that are harmful to the
environment, for example the Hazardous Substances Act 15 of 1973.
& Legislation that primarily contains environmentally specific legal provisions

In this category we find legislation that promotes an environmental object and
contains environmentally specific rules and standards and other norms.
Examples include the Development Facilitation Act 67 of 1995, the Local
Government: Municipal Structures Act 117 of 1998 and the Local Government:
Municipal Systems Act 32 of 2000.
& Legislation that contains environmentally specific norms incidentally

The general purpose of this legislation is not environmental conservation and
management, although it does include individual provisions with such an aim,
for example the National Road Traffic Act 93 of 1996 and the Health Act 63 of
1977.
3.2 Brief summaries of selected national environmental legislation and

legislation that primarily contains environmentally specific legal
provisions to illustrate such an environmental component
PLEASE NOTE: The following examples are provided merely to illustrate

how various facets/components of the environment are
accommodated in environmental legislation in the
context of sources of environmental law.
34
& National Environmental Management: Protected Areas Act 57 of 2003
The Act provides for the protection and conservation of ecologically viable
areas that are representative of South Africa’s biological diversity and its
natural landscapes and seascapes; the establishment of a national register of
all national, provincial and local protected areas; the management of those
areas in accordance with national norms and standards; intergovernmental
cooperation and public consultation in matters concerning protected areas;
and the continued existence, governance and functions of South African
National Parks (SANP) and the SANP Board.
& National Environmental Management: Biodiversity Act 10 of 2004

The Act provides for the management and conservation of South Africa’s
biodiversity within the framework of the National Environmental Management
Act 107 of 1998; the protection of species and ecosystems that warrant
national protection; the sustainable use of indigenous biological resources;
and the establishment and functions of the South African National Biodiversity
Institute (SANBI).
The Act defines ‘‘biological diversity’’ or ‘‘biodiversity’’ 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
& National Environmental Management: Air Quality Act 39 of 2004

This Act reforms the law regulating air quality, provides reasonable measures
for the prevention of pollution and ecological degradation and secures
ecologically sustainable development while promoting justifiable economic
and social development. The Act further provides national norms and
standards for the regulation of air quality monitoring, management and
control by all spheres of government. It also identifies listed activities that
require licensing and empowers emission control officers to regulate and
enforce licensing requirements.
& National Water Act 36 of 1998

This Act promotes the sustainable use of the natural resource, water, for the
benefit of all users. The following realities are acknowledged in the Preamble:
Recognising that water is a scarce and unevenly distributed national resource

which occurs in many different forms which are all part of a unitary,
interdependent cycle;
Recognising that while water is a natural resource that belongs to all people,
the discriminatory laws and practices of the past have prevented equal access
to water, and use of water resources;
Acknowledging the National Government’s overall responsibility for and
35
authority over the nation’s water resources and their use, including the
equitable allocation of water for beneficial use, the redistribution of water,
and international water matters;
Recognising that the ultimate aim of water resource management is to

achieve the sustainable use of water for the benefit of all users;
Recognising that the protection of the quality of water resources is necessary

to ensure sustainability of the nation’s water resources in the interests of all
water users; and
Recognising the need for the integrated management of all aspects of water
resources and, where appropriate, the delegation of management functions to
a regional or catchment level so as to enable everyone to participate;
The ways in which water resources must be protected make provision for
several factors, including meeting the needs of present and future generations
and promoting the efficient, sustainable and beneficial use of water in the
public interest.
& Lake Areas Development Act 39 of 1975

The Act determines that any land comprising or adjoining a tidal lagoon, a
tidal river or any part thereof, or any other land comprising or adjoining a
natural lake or a river or any part thereof, which is within the immediate vicinity
of a tidal lagoon or a tidal river, may be declared a lake area.
& National Forests Act 84 of 1998

This Act reforms the law relating to forests. It contains principles of
sustainable forest management, special measures to protect forests and
trees and provisions on the use of forests. Three categories of protected area
are indicated for declaration, namely
. a forest nature reserve
. a forest wilderness area
. any other type of area that is recognised in international law or practice
The Act sets out the procedures for declaring areas to be protected areas and
the management of such areas; it also sets out the implications of such
declaration.
& Mineral and Petroleum Resources Development Act 28 of 2002

Section 3 of this Act (entitled ‘‘Custodianship of nation’s mineral and
petroleum resources’’) provides as follows:
(1) Mineral and petroleum resources are the common heritage of all the
people of South Africa and the State is the custodian thereof for the
benefit of all South Africans.
(2) As the custodian of the nation’s mineral and petroleum resources, the
State, acting through the Minister, may –
(a) grant, issue, refuse, control, administer and manage any
36
reconnaissance permission, prospecting right, permission to
remove, mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right and
production right; and
(b) in consultation with the Minister of Finance, determine and levy,
any fee or consideration payable in terms of any relevant Act of
Parliament.
(3) The Minister must ensure the sustainable development of South

Africa’s mineral and petroleum resources within a framework of
national environmental policy, norms and standards while promoting
economic and social development.
& National Parks Act 57 of 1976

The Act provides for the establishment of parks on state land and for the
acquisition of land for the purposes of a park.
& Conservation of Agricultural Resources Act 43 of 1983

This Act regulates the control of land used for agriculture. In its long title, the
Act provides for the
... control over the utilisation of the natural agricultural resources in order to
promote the conservation of the soil, the water sources and the vegetation ...
This Act does not apply in urban areas or land situated within a mountain
catchment area.
& Legislation that incidentally contains environmentally specific legal provisions

* Development Facilitation Act 67 of 1995
This Act (the DFA) was promulgated with a view to introducing measures to
facilitate and speed up the Reconstruction and Development Plan (RDP)
guidelines on land.
The general objectives for land development include the following: to
promote the integration of the social, economic, institutional and physical
aspects of land development and to encourage environmentally sustain-
able land development practices and processes. The Act provides for, inter
alia, the establishment of a Development and Planning Commission to
advise the government on policy and laws concerning land development at
national and provincial level, and the establishment in the provinces of
development tribunals with the power to make decisions and resolve
conflicts in respect of land development projects. The Act also emphasises
the implementation of EIAs (environmental impact assessments) in ac-
cordance with integrated environmental management guidelines issued by
the Department of Water and Environmental Affairs.
* Local Government: Municipal Structures Act 117 of 1998
37
This Act provides for the establishment of municipalities. Within that con-
text, the Act indicates that integrated development planning is a function of
municipal government (s 84) and that environmental issues are relevant.
* Local Government: Municipal Systems Act 32 of 2000

The Act promotes, inter alia, community participation in municipal gov-
ernment. One of the major proposals is for municipal councils to establish
appropriate mechanisms, processes and procedures for residents, com-
munities and community organisations to participate in municipal affairs.
Section 16 of the Act deals with the development of a culture of community
participation. It provides as follows:
(1) A municipality must develop a culture of municipal governance that
complements formal representative government with a system of
participatory governance, and must for this purpose –
(a) encourage, and create conditions for, the local community to
participate in the affairs of the municipality, including in –
(i) the preparation, implementation and review of its integrated
development plan in terms of Chapter 5;
(ii) the establishment, implementation and review of its perfor-
mance management system in terms of Chapter 6;
(iii) the monitoring and review of its performance, including the
outcomes and impact of such performance;
(iv) the preparation of its budget.
(b) contribute to building the capacity of –

(i) the local community to enable it to participate in the affairs
of the municipality; and
(ii) councillors and staff to foster community participation; and
(c) use its resources, and annually allocate funds in its budget, as
may be appropriate for the purpose of implementing paragraphs
(a) and (b).
3.3 Provincial legislation

You will probably remember from your constitutional law studies that Chapter 3
of the Constitution provides for cooperative government (ss 40–41). This
particular chapter must be read with Schedules 4 and 5 of the Constitution,
which make provision for concurrent and exclusive legislative competences
respectively. You may also recall that South African environmental law deals
primarily with the management of the environment, specifically pollution
control, nature conservation and planning. Cooperative governance has the
effect that these areas of environmental law are divided among all three
spheres of government (national, provincial and local). (Cooperative
governance within the context of environmental law is discussed in study
unit 5.)
Since we now have nine provinces, the potential exists for an overabundance
of environmental legislation to be adopted in each of these provinces. Up till
38
now, the following new provincial legislation has been adopted (in
alphabetical order according to provinces). This is by no means a complete
list:
1. The Provincial Parks Board Act (Eastern Cape) 12 of 2003 came into
operation on 31 December 2003. This Act provides, inter alia, for the
management of biodiversity in provincial parks.
2. The Eastern Cape Parks and Tourism Agency Act 2 of 2010 commenced
on 1 July 2010. The environmental angle of this Act is found in the
establishment of the Eastern Cape Biodiversity Conservation and
Development Fund and the appointment of environmental management
inspectors, inspectors and compliance officers.
3. KwaZulu-Natal adopted the KwaZulu-Natal Nature Conservation
Management Act 9 of 1997 (not yet in operation). This Act provides for
institutional structures for nature conservation in KwaZulu-Natal and
establishes control and monitoring bodies and mechanisms to achieve
the purpose of the Act.
4. The Limpopo Environmental Management Act 7 of 2003 came into
operation on 1 May 2004. According to the long title of the Act,
environmental management legislation of the province, or any such
legislation assigned to the province, is consolidated or amended by this
Act. The Act deals with a number of matters, inter alia, ‘‘protected areas’’
(s 3); ‘‘the Convention on International Trade in Endangered Species of
Wild Fauna and Flora’’ (s 9); ‘‘environmental pollution’’ (s 13); and the
officials dealing with all these matters (‘‘environmental compliance
officers’’) (s 14).
5. The Northern Cape Planning and Development Act 7 of 1998 contains
various references to environmental issues in the formulation of plans; it
also stipulates that regulations or guidelines may be made on measures
aimed at protecting the environment, including environmentally
sustainable application procedures (refer to s 79(1)(b)(i)). The Act came
into operation on 1 June 2000.
6. The Northern Cape Nature Conservation Act 9 of 2009 provides for the
sustainable utilisation of wild animals, aquatic biota and plants; the
implementation of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora; offences and penalties for contravention
of the Act; the appointment of nature conservators to implement the
provisions of the Act; and, finally, the issuing of permits and other
authorisations. The Act is not yet in operation.
7. In the Western Cape Planning and Development Act 7 of 1999 (not yet in
operation), under ‘‘General Planning and Development Principles’’,
certain principles are found, inter alia, Principle 6, entitled ‘‘Principles of
Sustainable Development’’ and Principle 7, entitled ‘‘Principles of
Environmental Protection’’.
39
Turn back to the newspaper article reprinted at the beginning
of this guide. You have been asked to provide the protestors
Activity 3 with a list of the most appropriate sources to consult to
strengthen their arguments against the proposed toll road.
1. Make a list of the sources the protestors could use.
2. Briefly substantiate your choice of each source.

This is a self-assessment activity. Use the preceding discussion to guide you when
you tackle this activity. However, do take note of the fact that the sources we
mentioned are not necessarily the only ones you could advise the protestors to
consult. Since the sources of environmental law cover such a wide field, you will be
required to extend your research using, for example, reputable search engines such
as Google, should you have access to the internet.
4. Case law/judicial precedent

Case law, through the force of stare decisis (the system of precedent), is
becoming an increasingly important source of South African environmental
law. Consider, for example, the important contribution of the courts in the
matter of locus standi in environmental matters. Furthermore, in terms of the
Constitution, the courts (and, in the final instance, the Constitutional Court)
may, in the future, play an even greater role in environmental protection.
The Fuel Retailers decision found in your e-reserve illustrates how the
Constitutional Court has contributed to the transformation of environmental
law in South Africa.
5. Common law
The common law (private law) was never directly aimed at environmental
conservation and management, which, in essence, is a public interest matter.
However, by protecting the environmental interests of private individuals, the
common law remains a source (albeit a minor one) of South African
environmental law.
2.2.2 Persuasive sources
NOTE: We are discussing only two of the four persuasive sources

mentioned above.
40
1. Policy documents
Current government policy on various topics (and, of course, environmental
management matters and environmental law) is expressed in the form of
Green Papers and White Papers. The government’s policies on a vast range of
matters are set out in these documents.
A Green Paper is a consultative document. In a participatory democracy, the

people – ‘‘we, the people of South Africa’’ – should participate in our
governance. Or, to put it differently, we should have a say in how we are
‘‘ruled’’ by the authorities in power. Through Green Papers, the people are
invited to comment on various matters to be regulated by the government.
A recent important Green Paper on the environment in which the public was
invited to comment on the government’s envisaged policy on and response to
climate change is the National Climate Change Response Green Paper (2010),
published in GN 1083 in Government Gazette No 33801 of 25 November 2010.
In paragraph 1, the purpose of the policy is set out. South Africa is committed
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 the government’s commitment to sustainable
development and a better life for all.
A White Paper is the final document in the consultative process, which

includes the expression of the government’s commitment to something, the
action that will be taken and the implementation of the policy. In short, a White
Paper is the blueprint or outline of the government’s policy on various matters.
(i) An example is the White Paper on the Renewable Energy Policy of the
Republic of South Africa N 513/2004, published in Government Gazette
No 26169 of 14 May 2004.
(ii) A key example of the importance of a White Paper as a blueprint of a
government’s policy on various matters (in this instance, environmental
matters) is the (final) White Paper on Environmental Management Policy
for South Africa N/749, published in Government Gazette No 18894 of 15
May 1998 (which was preceded by a Green Paper – a discussion paper).
This White Paper evolved by means of a process of public consultation
and participation known as the Consultative National Environmental
Policy Process – CONNEPP. CONNEPP (which lasted from May 1995 to
May 1998) enabled the various stakeholders from labour, NGOs, civil
society and the government to participate in the formulation of a new
environmental policy for South Africa. The White Paper ‘‘provided the
basis for the NEMA’’ (Glazewski 2005:134).
The White Paper emphasises the concept of ‘‘sustainable development’’.
In Chapter 4, entitled ‘‘Achieving Policy Goals and Objectives’’, the
government outlines its strategic goals and objectives under the
41
‘‘overarching goal – sustainable development’’ and explains that ‘‘the
intention is to move from a previous situation of unrestrained and
environmentally insensitive development to sustainable development
with the aim of achieving an environmentally sustainable economy in
balance with ecological processes’’ (1998:25). Read within the context of
the provision on sustainable ecological development in section 24(b) of
the Bill of Rights, the White Paper reiterates that sustainable development
requires participation, equity and sustainable use of natural resources,
and that the South African government needs to address in its
environmental policy, inter alia, environmental decision-making that
employs an integrated and macroeconomic perspective.
In this regard, CONNEPP and the subsequent White Paper have aimed at
developing a broad policy and strategic framework to enable sustainable
environmental management in South Africa.
Various principles have been identified to guide environmental policy and
these principles should be considered to achieve the ultimate commit-
ment to sustainable development.
A NOTE ON THE MEANING OF THE NOUN ‘‘PRINCIPLE(S)’’:

In the draft onmental Management Policy N/1096, published in
Government Gazette No 18164 of 28 July 1997, the following definition
of ‘‘principles’’ is provided in paragraph 3:
Principles are the fundamental premises government will use to apply,

develop and test policy and subsequent actions including decision
making, legislation, regulation and enforcement.
(As to the meaning of ‘‘premise’’, note that according to the Compact

Oxford English dictionary (2005), a ‘‘premise’’ is ‘‘a statement or idea that
forms the basis for a theory, argument, or line of reasoning’’. And
according to the Collins English dictionary: Millennium edition (1999), a
‘‘premise’’ is ‘‘a statement that is assumed to be true for the purpose of an
argument from which a conclusion is drawn’’.)
According to the Compact Oxford English dictionary (2005), the noun
‘‘principle’’ (and note: do NOT confuse the noun ‘‘principle’’ with the
adjective ‘‘principal’’, denoting ‘‘main or most important’’) means
1 a truth or general law that is used as a basis for a theory or system
of belief: the basic principles of democracy ... 4 a general scientific
theorem or natural law. 5 a fundamental quality or basis of
something ...
The principles spelled out in the White Paper include

. accountability
. affordability
. avoiding a conflict of interests
42
. capacity building and education
. the cradle-to-grave principle (the life cycle principle)
. efficiency
. environmental justice
. equity
. flexibility
. global and international cooperation and responsibility
. good governance
. inclusivity
. integration
. open information
. participation
. the precautionary principle
. the preventive principle
. the ‘‘polluter pays’’ principle
Six strategic goals and objectives have been formulated in Chapter 4:

. effective institutional framework and legislation
. sustainable resource use and impact management
. holistic and integrated planning
. participation and partnerships in environmental governance
. empowerment and environmental education
. information management and international cooperation
The rest of the White Paper (Chapter 5) deals with the governance of
environmental affairs and covers areas such as
. the constitutional setting and the Bill of Rights
. the essential requirements for effective environmental governance
. the lead agent in environmental affairs
. coordination of functions
. the development of an integrated and comprehensive regulatory system,
regulatory mechanisms and programmes to deliver services
(iii) The White Paper on the Conservation and Sustainable Use of South
Africa’s Biological Diversity (July 1997) gave rise to the National
Environmental Management: Biodiversity Act 10 of 2004. The White
Paper gives a comprehensive discussion of the term ‘‘biological
diversity’’. The White Paper also reflects our government’s obligation to
draft policy that brings the legal position on biodiversity in line with both
the Constitution and the Convention.
‘‘Biological diversity’’ (or ‘‘biodiversity’’) refers to the life-support systems

and natural resources upon which we depend. There are three main
components of biodiversity:
. genetic diversity (e.g. the variety of genes within species)
43
. species diversity (e.g. the variety and abundance of species within a
geographic area)
. ecosystem diversity (e.g. the variety of ecosystems found within a
certain political or geographical boundary)
In 1995 South Africa signed the United Nations Convention on Biological

Diversity (the CBD) (see the reference to the Rio Summit in study unit 5).
Bear in mind that the Convention has now been ratified and forms part of
South African law. Briefly, the Convention stipulates three main
objectives, namely
. the conservation of biodiversity
. the sustainable use of biological resources (i.e. the components of
biodiversity)
. fair and equitable sharing of benefits arising from the use 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’’
Briefly describe how Green and White Papers play an

important role in the development of environmental law.
Activity 4 Provide examples to substantiate your argument(s).

In your answer, you first need to explain what Green and White Papers are.
Thereafter you can explain the important role they play in environmental law.
2. Foreign law/comparative law

Section 39(1)(c) of the Constitution states that the courts may consider
foreign law. They may choose whether to turn to the laws of other countries to
assist them in cases where insufficient guidance from South African law is
available. By foreign law, we mean the law (case law, in particular) of countries
such as the USA, Germany, Canada, India and Namibia.
2.3 Distinctive principles guiding and supporting

environmental law
2.3.1 General remarks
Earlier we mentioned the meaning the government attaches to the noun
‘‘principle(s)’’ and we provided the dictionary meaning of the noun. We also
44
mentioned Glazewski’s observation that the development of emerging
‘‘distinctive principles’’ of the subject of environmental law needs to be
nurtured. Kidd phrases the question somewhat differently by asking: ‘‘[T]o
what degree [must] legal principles relate to environmental management to
qualify as environmental law?’’ (2011:5). As an ancillary question, he queries
whether there are indeed any ‘‘distinctive environment law principles’’
(2011:7).
There is also the problem of a lack of unanimity among authors/academics

regarding which concepts (i.e. ideas) qualify as ‘‘distinctive principles’’ of
environmental law.
A NOTE ON THE USE OF THE WORDS ‘‘PRINCIPLE(S)’’ AND

‘‘NORM(S)’’ INTERCHANGEABLY
You will notice in literature that sometimes reference is made to
‘‘environmental norms’’ and, in other instances, to ‘‘distinctive
(environmental) principles’’. In this regard, take note of the following
observations of Henderson (2001:141–142):
Put simply, a ‘norm’ may be described as a rule or authoritative statement,
while a principle may be defined as a fundamental source or primary
element, force or law which produces or determines particular results. If
there were any meaningful difference between the two terms, it would
appear that a principle might be understood as going to the fundamental
essence of a thing, whereas a norm may apply more widely. In the literature,
however, these terms seem to have been used loosely and interchangeably.
Getting back to different authors’ views on what the ‘‘distinctive principles’’ of

environmental law are, Kidd is of the opinion that there is ‘‘general
agreement’’ on only two: ‘‘the ‘polluter pays’ principle and the precautionary
principle’’ (2011:7), whereas Henderson (ibid) identifies the following
principles:
. sustainable development (‘‘indeed the founding principle of environmental
law’’) (2001:154)
. duty of care to avoid harm to the environment (2001:157–159)
. precautionary principle (the ‘‘cautionary approach’’) (2001:160–163)
. environmental justice (2001:163–165)
. life cycle responsibility (2001:166–167)
. ‘‘polluter pays’’ principle (2001:173–174)
According to Bell and McGillivray (2006:59), the ‘‘most common substantive

principles associated with environmental law and policy’’ are
. sustainable development
. the preventative principle
45
Glazewski (2013:20–28) identifies the following principles, norms, emerging
concepts and trends in environmental law:
. sustainable development (both a norm and a principle)
. environmental justice (an emerging concept)
. a human right to a decent environment (a worldwide trend)
. intergenerational equity (a norm)
. the public trust (a doctrine)
. the preventative principle
. common but differentiated responsibility (a principle)
2.3.2 Glazewski’s ‘‘emerging environmental law norms and

concepts’’
Please refer to your e-reserve for Glazewski J ‘‘Emerging environmental law
norms and concepts’’ Environmental law in South Africa (2013:15–28).

1. Section 2(1) of NEMA states that the principles set out in

the particular section apply to the actions of all organs of
Activity 5 state ‘‘that may significantly affect the environment’’. In
section 2(4)(a) to (r), the principles are spelled out. Read
these principles carefully and then turn to the long
abstract taken from Glazewski (ibid). Which of the
principles identified by Glazewski are also ‘‘recognised’’
in the 18 principles of the Act?
2. Return to the newspaper article reprinted at the
beginning of this guide. Which principles set out in
section 2(4) of NEMA are applicable to the set of facts
described in the scenario? Substantiate your choice of
principle(s). In your answer you need to explain what the
particular principle(s) you have chosen require(s) (in
other words, what the contents of the particular
principles are).
3. Read the prescribed decision, Fuel Retailers Association
of Southern Africa v Director-General: Environmental
Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province 2007 6 SA 4
(CC), which is reproduced in your reader, and summarise
what the court held regarding the purpose of the
principles.
46
4. Indicate how the concept ‘‘sustainable development’’
has been incorporated into environmental legislation.
5. Explain how the Constitutional Court has supported
the concept of sustainable development in your pre-
scribed court case (Fuel Retailers). (In your explana-
tion you also need to mention the details of the
minority judgment.)
1. HINT: We suggest that you write down the relevant principle you have
identified from section 2(4) next to the relevant principle discussed by
Glazewski.
2. Use the preceding comments (and even the preceding question) for
guidance when you tackle this activity.
3. The purpose of this activity is to ‘‘compel’’ you to read the prescribed
decision very carefully AND to summarise what you have read. (Remember
to write down the paragraph number in which you found any reference to the
principles.)
4. A ‘‘hint’’ on how to approach this question will not be out of place here:
Return to the different statutes under sources discussed above and see what
has been written about ‘‘sustainable development’’ in them.
5. Refer to our observation in 3 above; the same applies to this question.
2.4 A brief overview of the history of

environmental law
We conclude this study unit with an abstract from Michael Kidd’s
Environmental law (2011), in which he gives a brief overview of the history of
environmental law. The purpose of this overview is to provide you with an
indication of the ‘‘roots’’ of today’s environmental law – the historical reasons
for the present-day growth in the importance and development of this
discipline.
Please refer to your reader for Kidd M ‘‘A brief overview of the history of
environmental law’’ in Environmental law (2011:12–14) of your reader.

47
This study unit examined the nature, the scope and the sources of
environmental law and the distinctive principles that guide environmental
law. It also gave a brief overview of the history of environmental law.
In the next study unit (the third and final one in Theme I) we discuss the
importance of international law for the environment and its protection and
management. By way of introduction, the nature and the scope of (general)
international law will be considered before we proceed with a discussion of
international environmental law (IEL).
48
STUDY UNIT
3
International environmental law and South
Africa
OVERVIEW
In this third and final study unit of the introductory theme, the importance of international
law for the environment and its protection and management is examined. By way of
introduction, the nature and the scope of (general) international law will be considered.
Included in the discussion is an examination of the sources of international law and an
explanation of the difference between traditional and non-traditional (‘‘soft law’’) sources of
international law. Also under discussion is the recognition and status of (general)
international law in terms of the Constitution of the Republic of South Africa, 1996. The
means of enforcing/complying with (general) international law are mentioned in passing.
Having discussed the sources of international law, we will then examine the nature and
content of international environmental law (IEL). IEL is an example of a ‘‘self-contained
regime (lex specialis )’’.
The study unit also includes a non-exhaustive list of the most important international
environmental treaties (gleaned from an abstract from Dugard’s International law: A South
African perspective (2011)). We also learn from the abstract the content of the selected
treaties in the context of the challenge or problem they seek to address and solve.
We also include a brief reference to the provisions in the National Environmental
Management Act pertaining to ‘‘international obligations and agreements’’.
The study unit continues with a brief overview of the landmarks in the historical
development of IEL (an abstract from Kidd’s Environmental law ). The overview emphasises
the importance of certain principles, the contents of which are still evolving. In the context of
the historical landmarks, we highlight the link between them and their ‘‘recognition’’ in
South African municipal law, referred to in the previous study units.
The study unit concludes with a very specific aspect of international environmental law,
namely, climate change (both at international and local level).
By the end of this study unit, you should be able to:

& explain briefly why international law plays an important role in the study of en-
vironmental law
& explain what international law is
49
& discuss the recognition and the status of international law in terms of the Con-
stitution of the Republic of South Africa, 1996
& explain what is meant by the ‘‘manner of implementing international law in mu-
nicipal law’’ in South Africa and what is required in terms of the Constitution
& discuss the sources of international (environmental) law and explain the differ-
ence between traditional and non-traditional (‘‘soft law’’) sources of international
environmental law
& explain the means of enforcing/complying with international law (briefly explain
the mechanisms and the procedures used for enforcement)
& discuss the nature and the scope of international environmental law
& discuss the provisions of NEMA as regards international environmental agree-
ments in South Africa
& identify the principles unique to international environmental law and note their
presence (i.e. recognise them) in South African municipal law
& mention at least five important international environmental treaties and explain
briefly the challenge or problem they seek to address and solve
& provide a brief overview of the highlights/landmarks in the historical development
of international environmental law
& provide a description of the development of climate change law – both at inter-
national and local level
& identify and explain the principles unique to climate change
3.1 Why international law plays an important role

in the protection and management of the
environment
You will recall that right at the beginning of this study guide (in study unit 1) we
asked you to consider how environmental deterioration or damage has
affected the world (in other words, the effects of global damage). In the
feedback we drew your attention to the reality that the whole world may be
detrimentally affected by air and marine pollution, which does not respect
state boundaries. (For example, all people have to breathe the same polluted
air, no matter where in the world they live.) Other examples we referred to are
ozone depletion and ‘‘global warming’’, or climate change. We can also add
loss of biodiversity, desertification (‘‘the process by which fertile land
becomes desert’’) and nuclear damage.
50
Can you think of other examples of environmental
deterioration or damage (environmental ‘‘dangers’’) that
Activity 1 know no geographical boundaries, that is, that extend
beyond the physical borders of a particular state, including
South Africa’s borders? Are these problems increasing?
Write down examples of such environmental dangers. Would
you be able to show examples of the escalation of
environmental problems internationally?

To answer this activity satisfactorily, you need to do some research of your own. You
could turn to government White Papers on particular forms of environmental
damage, search the internet under the topic ‘‘international environmental problems’’
and read newspapers. There is virtually no limit to the sources available.
The various examples of environmental problems that transcend state borders

and, more importantly, the intensification of these problems bring the role and
importance of international law to the fore. To tackle these problems,
international cooperation is essential, whether on a broad international basis
or in a regional context (e.g. within the Southern African region). Through its
effort to fight global environmental degradation, South Africa forms part of the
international environmental law community. For example, South Africa is a
signatory to the Montreal Protocol (an international treaty against ozone
depletion) and the Convention on Biological Diversity (which aims to conserve
and promote the sustainable use of the life-support systems and natural
resources upon which we depend).
The reality and necessity of international cooperation is neatly summarised in

the statement that the escalation of environmental degradation has compelled
states to cooperate internationally and to fashion universal/international
standards to address the various environmental issues effectively and
coherently (Olivier & Abioye 2008:184).
Bell and McGillivray (2006:144) speak of the ‘‘central ways’’ in which

international law is important for the protection and management of the
environment, which include the following:
. Transboundary and/or global problems require international, or at least

bilateral (i.e. involving two parties) solutions. For this reason, international
legal regulation will be either necessary or desirable.
. International agreements may generate principles (‘‘standards’’) that are
adopted in national law or that guide decision-making in areas like the
interface between international trade and the environment.
51
. The ‘‘international arena’’ is important for the development of principles of
environmental law such as sustainable development or the precautionary
principle. These principles often develop ‘‘precisely because their origins
are in agreements that are not legally binding’’.
. Because of the nature of international law, recent developments in the
discipline have focused the attention of environmental lawyers on different
methods of ensuring compliance with environmental law. For example,
rather than reliance on ‘‘negative ‘command and control’ style
enforcement mechanisms’’, attention to procedures and on positive
inducements can be used to ensure compliance.
. ‘‘Perhaps negatively’’, the development of environmental law may be
subject to restrictions that originate in international law. For example,
import restrictions may be deemed incompatible with the rules regulating
international trade.
Can you think of other reasons why the environment needs

international protection and management?
Activity 2

Hint: In the South African context (and in respect of other countries), think of the
illegal trade in and export of wild/exotic animals. Second hint: As you read through
this guide, take note, for example, of the conventions adopted to protect certain
aspects of the environment in a global context.
3.2 The nature of international law

3.2.1 Introduction
In this section, we first have to look at the nature of general international law
before we can study international environmental law as an example of a
‘‘specialised branch’’ of international law. Once again, the Constitution of the
Republic of South Africa, 1996 has brought far-reaching changes to the status
of international law in the South African context.
It is quite easy to understand the nature and operation of a national/municipal

law (including environmental law). For example, the South African legislature
(Parliament) passes laws; the judiciary adjudicates violations of the law; and
the executive (also called the state administration) enforces legislation and
the decisions of the judiciary.
In the international sphere of law, there is no ‘‘world government’’ with central

organs of legislature, executive and judiciary. This means that international
law is ‘‘passed and promulgated’’ and then enforced differently from national/
52
municipal law, but it still has to recognise and respect individual states with
their ‘‘state governments’’ and national legal systems (known as the
sovereignty of the various states).
3.2.2 What is international law?

The question is: How is international law to be defined?
If you are familiar with the contents of the International Law module, you will
know that it is possible to distinguish between an outdated and a narrow
definition of general international law on the one hand (the traditional
definition) and a more ‘‘progressive’’ or ‘‘modern’’ one on the other hand.
Traditionally, international law has been defined as a body of rules that govern
and regulate the relations between states, between states and international
organisations (such as the United Nations (UN) and its specialised agencies
and an institution such as the World Bank), and between international
organisations themselves.
A more progressive or realistic definition of international law is not so much

based on the nature of the subject (a state or an international organisation),
but on the capacity or ability of subjects to interact in the international arena in
a given situation. The most notable subject is the individual, who may in
certain circumstances be recognised as a subject of international law for
certain purposes only (for example, diplomats, war criminals and refugees
who are increasingly being recognised as having certain rights and duties in
terms of ‘‘modern’’ international law). Increasingly, other entities are also
playing a role in the international legal order. They include non-governmental
organisations (NGOs), indigenous peoples and liberation movements. The
essence of the modern definition of international law is that more entities
(other than states and international organisations) must also be regarded as
part of international law when the capacity granted to them allows/permits
them to interact in the international arena. Consequently, the determining
criterion is international legal personality or capacity.
Notwithstanding the preference for a more modern definition of international

law, John Dugard’s comment remains valid, namely, that ‘‘although entities
other than states participate in the contemporary international legal order, it is
essential to recall that states and inter-governmental organizations are the
main actors in the international community, the only entities with true
international personality and the principal creators of rules of international
law’’ (2011:2). Consequently, states and international organisations remain
the principal subjects of international law.
This is a very simple activity, requiring some old-fashioned,

‘‘parrot-fashion’’ learning from you: learn the definition of
Activity 5 exactly what international law is. Note, however, that you
must be able to distinguish between the traditional definition
and the modern definition of international law.
53
3.3 The sources of International Law
3.3.1 Traditional sources

We find the sources of international law spelled out in Article 38(1) of the
Statute of the International Court of Justice (ICJ) – the judicial arm of the
United Nations. However, the article does not contain references to
‘‘sources’’, but rather directions to the court as to how to approach
disputes that come before the court. Article 38(1) gives directions to the ICJ
as to how to decide disputes referred to it in accordance with international law
by applying
(a) international conventions [treaties], whether general or particu-
lar, establishing rules expressly recognised by the contesting
States;
(b) international custom, as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations; and
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of the rules of
law.
(2) This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono [literally: by that which is fair and good], if the
parties agree thereto.
The sources of international law – the traditional sources – specified in the

Statute are therefore
. conventions (treaties)
. custom
. general principles of law
. subsidiary (secondary) sources – judicial decisions and the teachings of
qualified academics
The first three sources are so-called formal sources, while the subsidiary or
secondary sources – ‘‘judicial decisions and the teachings of the most highly
qualified publicists’’ – are indicated as the means through which the formal
sources can be found and/or to which we can turn if the other (formal) sources
have produced no results.
Treaties (conventions)
Treaties are agreements between states and are a vital source of international
law as a result of the increasing need for cooperation across national
boundaries. Treaties can cover almost any topic, for example the creation of
an international organisation; the setting up of trade; the granting of economic
aid; diplomatic relations; and the conservation and management of the
international environment. Treaties also establish a direct means of creating
rights and duties for states.
54
Article 2(1)(a) of the Vienna Convention on the Law of Treaties (1969),
available at http://www.umm.edu/humanrts/instrtee/vienna convention.html,
defines a ‘‘treaty’’ as:
an international agreement concluded between states in written form and

governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation.
The authors of the International Law module at Unisa prefer a more extended
definition. According to them (study guide for LCP4801:18), a ‘‘treaty’’ is
an agreement, whether written or oral, concluded between international law

subjects with the intention of creating a public international law relationship.
The agreement must give rise to reciprocal rights and duties and must be
governed by public international law.
The effects of treaties are different in international and municipal law. A treaty
first has to become operative before it can contain binding international law
rules, and for that, it depends on the will of the contracting states. Therefore,
no state is bound by a treaty unless it has given its consent to it (signed or
ratified it [to ‘‘ratify’’ means ‘‘to give formal consent to an agreement, making
it officially valid’’ – Compact English dictionary (2005)]), and the normal
requirement in the case of a multilateral treaty is that a predetermined number
of states should ratify it.
The legal effect of a treaty in national/municipal law will depend on the

constitutional law of the state. Before the existence of the present
Constitution, a parliamentary enactment was required to give internal
(municipal) effect to treaties. Such treaties then had legal application in
both international and municipal law. Moreover, South African courts could not
take international treaties directly into account unless they were first enacted
into national legislation. For example, the Brussels Convention on Civil Liability
for Oil Pollution Damage (1969) was incorporated in the Prevention and
Combating of Pollution of the Sea by Oil Act 6 of 1981, thus forming part of
South African Municipal law.
The Constitution has changed the status of international law in our new
constitutional system. (See the discussion below for further details.)
Customary international law (custom)

Customary international law is also an important source of international law
and is found in the practice of states. For a definition of customary law, we
once again need to turn to the Statute of the ICJ. Article 38(1)(b) provides that,
in settling disputes, the court must apply ‘‘international custom, as evidence
of a general practice accepted as law’’.
It is therefore obvious that there are two ‘‘legs’’ to customary law; before a
customary rule can be established, both of the following requirements must
be met
(1) general practice
(2) acceptance as law
55
In short, custom is based on the conviction that such practice is required or
permitted by international law. State custom is the source of the bulk of
traditional international law and was created and respected long before any
treaties existed. The rules on diplomatic immunity and the law of the seas, for
example, existed and were recognised by states long before treaties were
drafted.
The Constitution has also affected the status of customary international law in
the context of South African law. (See the discussion below for further details.)
Principles of law
These sources are less important international law sources. In general,
principles of law comprise a method for extending rules by inferring broad
principles from more specific rules and by borrowing from municipal law.
Examples of such borrowing from municipal law include the nemo iudex in sua
causa rule (‘‘no-one may be a judge in his/her own cause’’); the principle of
reparation (‘‘the making of amends for a wrong’’, according to the Compact
Oxford English dictionary (2005)); and the principle of a state’s being
responsible for all its agents.
Subsidiary sources – judicial decisions and teachings of academics

Although judicial decisions and the works of academic writers and teachers
tell us what the law is, they do not really create the law.
3.3.2 Non-traditional sources – ‘‘soft law’’

‘‘Soft law’’ has become an important ‘‘source’’ of international law, particularly
in the field of international environmental law and international human rights
law. ‘‘Soft law’’ comprises non-binding written legal instruments. Dugard
(2011:33) describes ‘‘soft law’’ as
imprecise standards, generated by declarations adopted by diplomatic
conferences or resolutions of international organizations, that are intended
to serve as guidelines to states in their conduction, but which lack the status
of ’law’.
‘‘Soft law’’ can be found in various guises. It consists of codes of practice,

recommendations, guidelines, resolutions, declarations of principles and
‘‘framework’’ or ‘‘umbrella’’ treaties (Kidd 2011:47).
These instruments do not fit neatly into the categories of legal sources
referred to above, but there is a strong expectation that they will command
respect and be adhered to by states, although they are not binding per se. In
other words, they are sources that do not traditionally give rise to enforceable
law.
The main advantage of ‘‘soft law’’ over ‘‘hard law’’ is that it may enable states
to take on obligations that they would not have assumed had they been
required to accede to a treaty, for instance, owing to the obligations being
56
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.
Yet another advantage of ‘‘soft law’’ is that it can assist in promoting and
reaching a compromise and thus prevent any deadlock in interstate
deliberations. It is therefore not surprising that ‘‘soft law’’ is increasingly
used in both general international law and the specialised field of international
environmental law.
‘‘Soft law’’ may not be enforced, but it has played an important role in paving
the way for formally binding obligations by establishing acceptable norms of
behaviour and by ‘‘codifying’’, or possibly reflecting, rules of customary law.
Examples include the initiatives of the United Nations Environment
Programme (UNEP), the Rio Summit Declaration on the Environment and
Development (1992), the United Nations Framework Convention on Climate
Change (UNFCCC) (1992) and more recently the Paris Agreement on Climate
Change.
Once again, these are rather simple activities.

1. Write down the definition of a "treaty" as found in the
Activity 4 Vienna Convention. Then write down the definition
preferred by the Unisa authors. Do you notice any
differences between the two definitions? If you do, what
are they?
2. Name the two requirements that must be fulfilled for
customary international law to develop and be
recognised.
3. What is ‘‘soft law’’? Discuss its (potential) influence in the
development of international environmental law.

HINT: Return to what we wrote earlier (in this section). Or, better still, turn to your
International Law study guide or any standard international law textbook for
guidance in answering these questions.
3.4 The recognition, status and application of

(general) international law in terms of the
Constitution of the Republic of South Africa,
1996
A question often asked is: Where, precisely, does (general) international law fit
into the Constitution of the Republic of South Africa, 1996?
57
Although international law features in several areas of the Constitution, we will
focus on two areas only, namely
. the Bill of Rights (Ch 2 of the Constitution, ss 7–39)
The interpretation clause in section 39
. General Provisions (Ch 14 of the Constitution, ss 231–243)
International law in sections 231–233
3.4.1 The interpretation and application of international

law
Section 2 of the 1996 Constitution stipulates, inter alia, that the Constitution is
the supreme law of the Republic. In terms of section 7, the state must respect,
protect, promote and fulfil the rights in the Bill of Rights. However, all these
rights are subject to the limitations provided for in section 36 of the Bill of
Rights. (See the next study unit for a more detailed discussion of this aspect in
relation to environmental law.) Section 39 of the Constitution (the section we
discuss below) deals with the interpretation of the Bill of Rights.
Section 39 provides as follows:
39 Interpretation of Bill of Rights
(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.
Furthermore, in terms of section 39(2), when interpreting any legislation, and

when developing common law or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of Rights. Subsection
(3) stipulates that the Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common law,
customary law or legislation, to the extent that they are consistent with the
Bill of Rights.
Section 233 provides as follows:
233 Application of international law
When interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law over
any alternative interpretation that is inconsistent with international law.
It is important to remember that both these sections function as a means/tool

for the interpretation of provisions in the Constitution (s 39) or of legislation in
general (s 233). This function of the two sections is an example of the indirect
application of international law as part of the interpretative process. You will
remember from your studies of international law that a distinction was drawn
between the direct and indirect application of international law in terms of
South Africa’s Constitution. When the indirect application of international law
58
features, the court, tribunal or forum is testing South African law against
international law to determine the meaning of provisions of our South African
law. It is important to remember that, in this instance, the court/tribunal/forum
does not apply international law as such.
NOTE: Section 39(1) does not provide that the courts must apply
international law - only that they must consider it. In other words,
the courts/tribunals/forums apply South African law, but are under
an obligation to consider whether the South African law they apply
is in line with international law on the same point.
The wording of section 233 is extremely wide (it refers to ‘‘any legislation’’). It
applies to ‘‘every’’ court and uses the term ‘‘prefer’’ (meaning that an
interpretation in terms of international law should be selected in preference to
any other, provided it is reasonable). The reference to ‘‘any reasonable
interpretation’’ does not necessarily mean the most or more reasonable
interpretation; rather, it means that such interpretation should be applied in
preference to ‘‘any other interpretation’’ that is not consistent with
international law.
3.4.2 International agreements (treaties and/or

conventions) and customary international law
When international agreements and custom come into the picture in the
national/municipal context, we talk of the direct application of international
law, that is, when the South African courts are empowered to apply the rules of
(general) international law as law.
Section 231 deals with international agreements and provides as follows:

(1) The negotiating and signing of all international agreements is the
responsibility of the national executive.
(2) 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 referred to in
subsection (3).
(3) An international agreement of a technical, administrative or executive
nature, or an agreement which does not require either ratification or
accession, entered into by the national executive, binds the Republic
without approval by the National Assembly and the National Council
of Provinces, but must be tabled in the Assembly and the Council
within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing
provision of an agreement that has been approved by Parliament is
law in the Republic unless it is inconsistent with the Constitution or
an Act of Parliament.
59
(5) The Republic is bound by international agreements which were
binding on the Republic when this Constitution took effect.
NOTE: For a proper reading/interpretation of this section, you must return

to the contents of the module entitled General Principles of Public
International Law or the standard textbook on international law in
South Africa, namely, Dugard J International law: A South African
perspective (2011).
Suffice it to say that sections 231(1)–(3) are relevant for determining whether a
treaty (the reference to ‘‘international agreements’’ in s 231 is to be
understood to mean ‘‘treaty’’ as defined in Article 2(1) of the Vienna
Convention on the Law of Treaties) binds South Africa in the international
arena. Section 231(4) informs us that any treaty that is binding on South Africa
internationally becomes law in South Africa.
NOTE: Any/every treaty becomes enforceable by South African municipal

courts only once it has been ‘‘enacted into law by national
legislation’’. In other words, treaties do NOT become part of the
law of the country (i.e. part of municipal law) without legislative
transformation.
There are three ways of realising such ‘‘legislative transformation’’:
(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.
(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.
In the National Environmental Management: Biodiversity Act 10 of 2004, for

example, the following provision is included among the objectives set out in
section 2:
The objectives of this Act are –

(b) to give effect to ratified international agreements relating to
biodiversity which are binding on the Republic.
Section 5 of the Act, entitled ‘‘Application of international agreements’’,

provides that ‘‘this Act gives effect to ratified international agreements
affecting biodiversity to which South Africa is a party, and which bind the
Republic’’. Note that South Africa is a party to the Convention on Biological
Diversity of 1992 – an international environmental instrument (i.e. a treaty) on
biodiversity.
60
Section 232 of the Constitution deals with customary international law and
provides as follows:
Customary international law is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament.
NOTE: Once again you are referred to the contents of the module entitled
General Principles of Public International Law or the standard
textbook on international law in South Africa, namely, International
law: A South African perspective (2011) for an accurate reading/
interpretation of this section. For our purposes, suffice it to say
that customary international law is available to and must be
applied by South African municipal natural courts.
We can conclude this brief discussion of the application of general

international law in South Africa by stating that the status of international
law in the South African context has come a long way with the adoption of the
Constitution. We are at the beginning of a new and exciting phase in South
Africa’s legal history. We can now say, beyond any doubt, that the question
facing the legal profession in this country is no longer the extent to which
international law is in line with South African law, but rather the extent to which
South African law is in line with international law.
1. Distinguish between the direct and indirect application

of international law in South African municipal law.
Activity 5 2. What is treaty law? How does it become part of South
African law?

HINT: For guidance regarding question 2, see the above discussion of sections
231–233 of the Constitution.
3.5 Enforcement and/or compliance with

international law
You will remember that we noted earlier that there is no international judiciary
with automatic and compulsory jurisdiction to enforce international law
principles; a state must give its consent before an international tribunal will
have jurisdiction over it. Your next question should logically be:
Are there any ‘‘enforcement measures/remedies’’ (i.e. ‘‘sanctions’’) in

international law and how effective are they?
61
A note on the use of terminology:
In international law, we often come across the term ‘‘sanctions’’ in relation
to ‘‘enforcement measures’’ against a state. The term has both a limited
and a more expanded meaning. In the limited sense, the term ‘‘sanctions’’
means specific measures taken jointly by states and/or by an international
organisation against a state. The Compact Oxford English dictionary
(2005) defines this meaning as follows: ‘‘2 (sanctions) measures taken by
a state to try to force another to do or obey something.’’ During the 1970s,
the United Nations adopted a number of enforcement measures
(‘‘sanctions’’) against South Africa because of its racist policies. One of
these sanctions was the prohibition on the sale of arms to South Africa in
terms of UN Security Council Resolution 418.
In the more expanded sense, the term ‘‘sanctions’’ is used in a generic
sense to refer to and describe all the enforcement measures and remedies
available to states and/or international organisations in the event of
another state disobeying a law or rule of international law.
Admittedly, legal enforcement measures per se are not as effective in

international law as political sanctions. Nonetheless, many international
organisations exercise direct control over their members, and through their
enforcement measures, they can muster international opinion against the
erring members (e.g. the Security Council of the United Nations may impose
economic sanctions and even permit the actual use of force against
aggressor states). Other enforcement measures available 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 the other states of the acts of one state which are in breach of
international law (Kidd 2011:48).
The fear of enforcement measures (sanctions), however, is not the main
reason for obeying international law. In fact, today states cannot exist in
isolation and need the advantages of international cooperation, which, of
course, include adhering to the ‘‘rules of the game’’. Disregard for these rules
will cause negative reactions by other states against the wrongdoer, and
although direct punishment may not always be imposed, other states will
become reluctant to have contact with the culprit. There is also the issue of the
reciprocal effects of breaches of international law and, certainly, where a
common resource such as the global environment is at stake, international
rules are to the advantage of all.
3.6 The development of international

environmental law
You need to see the development of the legal discipline known as international
environmental law against the background of/in the context of the trend in
62
recent years towards the ‘‘fragmentation’’ of international law, which resulted
in the emergence of other ‘‘specialized and relatively autonomous rules or
rule-complexes, legal institutions and spheres of legal practice’’ (Olivier &
Abioye 2008:185, quoting from the Report of the International Law
Commission, Fifty-eighth Session, General Assembly Official Records Sixty-
first Session Supplement 10 (A/61/10) at 404).
The most common characteristics of such special or self-contained regimes

are the presence of particular ‘‘subjects’’ as autonomous bodies within
international law, which have specialised rules or a specific/particular
interpretation of the general rules of international law.
Examples of such ‘‘specialised’’ international law are
. humanitarian law, which deals with the laws of war and the treatment of
combatants and those caught up in conflict
. international human rights law, which deals with the rights of the individual
that transcend the factional interests of a specific state
. international trade law, which deals with trade and related issues between
states and other international law subjects
. international criminal law, which deals with the prosecution at an
international level of those guilty of gross and systematic violations of
fundamental rights (note that this is a mixture of international human rights
and humanitarian law)
. international environmental law, which deals with the protection of the
environment, which transcends the interests of a single state (remember
the first activity in this study unit?)
3.6.2 Dugard’s exposition of the development of international

environmental law
Please refer to your e-reserve for Dugard J International law: A South African
perspective (2011), chapter 19, 400–413.

1. In 1992 Van der Vyver (SAYIL 494) wrote that

... in international law, state sovereignty no longer refers to a
Activity 6 state of absolute powers, privileges and immunities
associated with national independence, internal autonomy
and territorial integrity. Modern international law requires
governments of sovereign nations to conduct their ‘‘own
affairs’’ subject to the public order of the international
community of states which reflects global concerns in respect
of the environment.
63
To what extent does Van der Vyver emphasise state
sovereignty?
2. What role does international cooperation play in the
promotion of global environmental management?

HINT: Bear in mind that the traditional notion of state sovereignty concentrated on
the rights of independent sovereign states. Today, particularly in
environmental affairs, the emphasis is on the responsibilities of states in
terms of global environmental management. In this regard, states have a
responsibility to, inter alia, cooperate internationally to promote sustainable
environmental management.
3.7 Distinctive principles guiding and supporting

international environmental law

Go back to the Fuel Retailers Association of Southern Africa

v Director-General: Environmental Management,
Activity 7 Mpumalanga Province decision and reread it (the decision is
reproduced in your reader). Can you find any reference –
even just a hint – in that judgment to the recognition of the
principle of states having ‘‘common but differentiated
responsibilities’’? What do you think this principle means?

HINT: Should you find no guidance in the decision itself, you must do further
research and consult journals such as the SA Journal of Environmental Law
and Policy (SAJELP).
64
Go back to study unit 2, where we discussed the ‘‘distinctive
principles’’ directing environmental law. Draw two columns
Activity 8 on a piece of paper and in the one column, write down the
principles the various authors identified as being relevant to
South Africa. In the second column, write down the principles
Dugard recognises as important for the purpose of
international environmental law. Compare your two columns
and ‘‘link’’ those that are present both internationally and
nationally.
The purpose of this is activity is to help you come to grips with the large variety of
principles that have been deemed important in the context of the protection/
preservation and management of the environment generally and, more particularly,
in an international environmental law context.
3.8 Relevant treaties and the challenges or problems

they seek to address and solve

3.9 The National Environmental Management Act

and international law
Chapter 6 of the National Environmental Management Act (NEMA), entitled
‘‘International obligations and agreements’’, deals with the application of
international environmental law in South Africa. Section 25 provides for the
incorporation of international environmental instruments into South African law
in order to give effect to such instruments in South Africa.
Section 26 obliges the Minister to report annually to Parliament about

international environmental instruments for which he or she is responsible.
Section 27 deals with how international environmental instruments are applied
to South Africa.
65
1. The Antarctic Treaty was ratified and incorporated into
South African law. What are the legal implications,
Activity 9 nationally and internationally?
2. The Convention on Biological Diversity was signed by
South Africa and incorporated into our law. What are the
legal implications of this?
3. What does section 25 of NEMA provide regarding
international environmental instruments to which South
Africa is NOT a party? Is there any difference between
accession to an international environmental instrument
and the incorporation of such an instrument? Explain.
4. Refer back to study unit 1 and take note of the
classification of environmental problems. Once again,
two columns, marked A and B, will be the best way of
answering this particular activity. In column A, write
down the types/classes of environmental problems we
encounter at present (incidentally, can you think of any
others?). In column B, write down the treaties/
conventions you regard as examples of international
legal instruments that address these problems
internationally. If you are unable to classify a particular
convention, do you think that particular convention
caters for a newly identified environmental danger? Write
down your thoughts on this matter.

Questions 1 and 2 are aimed at encouraging you to return to the salient points that
were discussed in this study unit.
HINT: With reference to question 3, bear in mind that (international) ratification

binds South Africa in the international context only. A convention (international
environmental instrument) ratified but not yet incorporated into South African
law cannot be enforced by the South African courts. Pay attention to the
provisions of sections 25 and 27 of NEMA. (It will be a worthwhile exercise to
summarise the provisions of both these sections.)
HINT: With reference to question 4, it is necessary to pay particular attention to the

abstract from Dugard. Note: This question will help you to see the
interrelationship between the study units and to appreciate how "integrated"
the study of environmental law is.
66
3.10 Overview of the historical landmarks in the
development of international environmental law
To conclude this study unit, we provide you with an overview of the historical
landmarks in the development of international environmental law, based on an
abstract from Kidd. Note, however, that the landmarks Kidd indicates are
mentioned in other textbooks too. You will notice that through this ‘‘historical
continuum’’, as Guruswamy (2007:34) calls it, the historical landmarks of IEL
developed into ‘‘a permanent feature of the geo-political landscape of the
international community of nations, and of international civil society’’
(Guruswamy 2007:54).
3.10.2 The evolution of international environmental law

Michael Kidd quotes Philippe Sands (2003:25), who is of the opinion that
international environmental law ‘‘has evolved over four distinct periods’’. The
first period Kidd refers to with reference to Sands is the era before the creation
of the United Nations. Kidd refers to this period as follows: from early fisheries
conventions to the creation of the United Nations in 1945.
The second period highlighted by Kidd is described in the following abstract in

your e-reserve: Kidd M ‘‘A brief overview of historical landmarks in the
development of international environmental law’’ in Environmental law (2011),
52–56.

3.11 Climate change

Please refer to your e-reserve for Glazewski ‘‘International Climate Change
Law’’, chapter 3, 1–37 in Glazewski (ed) Environmental law in South Africa
(2013) LexisNexis.

Before we can attempt to follow the development of climate change law, it is

necessary to know what climate change entails.
3.11.1 Background
While it is known that the earth’s climate has always undergone changes (i.e. it
is not static), science indicates that it is changing at an extreme pace in a
relatively short period of time (IPCC, 2014: Climate Change 2014: Synthesis
Report. Contribution of Working Groups I, II and III to the Fifth Assessment
Report of the Intergovernmental Panel on Climate Change [Core Writing Team,
67
RK Pachauri and LA Meyer (eds)]. Scientific evidence further suggests that it
is mainly human (anthropocentric) activities that disrupt (change) the climate.
These human activities are connected to the release of greenhouse gases
(GHG) into the atmosphere (Glazewksi and Du Toit International climate
change law 3–3).
Activities that release relative large amounts of GHG include the combustion
and industrial processes of fossil fuels, namely, coal, oil and natural gas.
Examples include the energy sector (coal-fired power stations) and the
transport sector (vehicles, plains, etc). Can you think of other activities that
emit GHG?
3.11.1.1 Drivers of climate change

The drivers of anthropocentric (human) GHG emissions include
. population size
. economic activity
. energy use
. lifestyle
. land use patterns
. technology
3.11.1.2 Impacts and indicators

One major impact of the steep increase of GHG emissions is that the average
surface temperature of the world has increased and is set to increase. This
has several additional impacts such as an increase in extreme droughts and
floods. The science on climate change suggests the following:
. The world has been operating in a relatively ‘‘safe’’ and ‘‘stable’’ operating
space (we could relatively accurately predict the climate and therefore
know when to plant what crops where).
. The world is moving away from that relatively ‘‘safe’’ and ‘‘stable’’
operating space to one that is unknown and seemingly less stable, and
therefore riskier for human beings.
. It is the poor who will feel the adverse impacts of climate change the most
(they do not have the resources to deal with the adverse impacts of
climate change) (Kotzé et al Climate change law and governance in South
Africa – setting the scene 1–10; also refer to Glazewksi and Du Toit
International climate change law 3–3; 3–4)
Indicators of environmental harm related to climate change suggest

. an increase in GHG concentrations
. rising average surface temperatures (certain areas or regions of the world
may experience extreme droughts and/or floods)
. declining crop yields
. groundwater contamination
. depletion of ocean ecosystems (fisheries)
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. an increase in biodiversity loss (measured as the rate of species
extinction)
. an increase in the frequency of great floods
. continued loss of tropical rain forests and woodlands
. rising sea levels
. forced relocation (relocation of communities) (Kotzé et al Climate change
law and governance in South Africa – setting the scene 1-10; also refer to
Glazewksi and Du Toit International climate change law 3–3).
Can you think of other indicators?

Humans are dependent on functioning ecosystems (for water, food, etc) and
therefore any change to ecosystems caused by climate change will directly
affect humans’ quality of live. A worst-case scenario is that the adverse
impacts of climate change could threaten the survival of human civilisation
(Glazweski refers to Zaberenko ‘‘Halt all carbon emissions by 2050 says
Worldwatch’’ Reuters 13 January 2009).
3.11.1.3 The numbers

Before the industrial revolution (circa 1750), GHG levels were around 280
parts per million (ppm) of carbon dioxide equivalent (CO2 e) (Glazewksi and
Du Toit International climate change law 3–3). More recent estimates put GHG
levels at around 430 ppm of CO2 e (Glazewski refers to the IPCC’s Fourth
Assessment Report 2007). Predictions are that if GHG emissions continue to
rise to the level of 550 ppm, then the global average temperature will likely
increase by more than 2 o C, which in turn could have calamitous
consequences (as was indicated earlier) (Glazewksi International climate
change law 3–3).
Any action to prevent a temperature increase of 2 o C or more will require the

following:
. Firstly, GHG emissions will need to be stabilised to within the range of

450–550 ppm CO2 e. This means that GHG emissions will have to peak
soon (i.e. reach their highest level).
. Secondly, a global effort will be required to bring GHG levels down from
peak level (if at all possible) (Glazewksi International climate change law
3–4).
3.11.1.4 Action
Do you think something should be done to address the impacts of climate
change? If so, do you think this is an urgent matter? If the world (humans)
continues on its current path of burning fossil fuels (a non-renewable
resource), thereby disrupting the earth’s climate by emitting GHG into the
atmosphere, the likelihood of severe, widespread and irreversible risks to both
people and ecosystems will increase greatly (Kotzé et al refer to the IPCC’s
Climate Change 2014: Synthesis Report: Summary for Policymakers).
Kotzé et al again refer to the IPCC’s Climate Change 2014: Synthesis Report:
69
Summary for Policymakers by stating: ‘‘The longer we wait, the more it will cost
and the more complex will be the technological, economic, social, institutional
and legal interventions required to adequately address climate change
impacts’’.
3.11.1.5 An environmental issue only?

Do you think climate change is an environmental issue only?
Climate change is connected to all aspects of development and therefore it

cannot be viewed only as an environmental issue. This implies that any
response to climate change needs to include the cross-cutting range of
economic, social and environmental domains (Kotzé et al Climate change law
and governance in South Africa – setting the scene 1–7).
Self-assessment
1. Give a definition of climate change.

2. Does your definition include the type of activity or
Activity 10 activities that lead to the disruption of the climate?
3. Does your definition refer to the pace at which climate
change is taking place?
4. Name examples of activities that release relatively large
amounts of GHG.
5. What is the link between humans and climate change?
6. Why will severe climate change have an effect on human
life?
7. Who will be most affected by climate change?
8. Explain the link between GHG levels and an increase in
the global average temperature.
3.11.2 Climate change at international level

Many governments agree that something should be done about climate
change. But what should be done and by whom?
What follows is a description of some of the international instruments

attempting to deal with the impacts of climate change.
3.11.2.1 The Intergovernmental Panel on Climate Change (IPCC)

The main international body that deals with climate change assessment is the
IPCC. Its mandate is to ‘‘provide the world with a clear scientific view on the
current state of knowledge in climate change and its potential environmental
and socio-economic impacts’’ (IPCC https://www.ipcc.ch/organization/
organization.shtml accessed 25 April 2017).
The IPCC was established in 1988 by the United Nations Environmental
70
Programme (UNEP) and the World Meteorological Organization (WMO). It was
endorsed by the United Nations General Assembly. It is an intergovernmental
body with around 195 members (countries) and is open to all member
countries of the UN and the WMO.
The IPCC does not conduct research, but it reviews and assesses the latest
information (scientific, technical and socio-economic) that is produced on
climate change. Governments take part in this review process (thousands of
scientists from different countries) and during regular meetings (known as
plenary sessions), decisions are made on whether or not to accept, adopt and
approve reports on climate change.
Based on its intergovernmental and scientific nature, the IPCC endeavours to

provide balanced scientific information on climate change. It produces
periodic reports – the latest being the Fifth Assessment Report (2014).
3.11.2.2 The United Nations Framework Convention on Climate

Change (UNFCCC)
The UNFCCC came into force in 1994 (after it had been opened for country
signature at the 1992 Earth Summit in Rio de Janeiro). It is an international
treaty whereby countries agreed on a framework for international cooperation
to combat climate change.
Its objective is to ‘‘stabilize greenhouse gas concentrations in the atmosphere

at a level that will prevent dangerous anthropocentric interference with the
climate’’ (UNFCCC First steps to a safer future: introducing the United Nations
Framework Convention on Climate Change http://unfccc.int/essential_
background/convention/items/6036.php).
Around 197 countries make up the parties to the convention. However, the
convention did not specify who had to do what to combat climate change and
therefore it lacked legally binding and enforceable commitments (Kotzé et al
Climate change law and governance in South Africa – setting the scene 1–10).
At the first meeting of the parties to the convention (Conference of the Parties
in 1995) it was agreed that a protocol needed to be developed whereby more
specific action would be spelled out. An instrument was needed that legally
binds countries to limit their GHG emissions to certain agreed targets. Parties
to the UNFCCC developed and agreed on such an instrument, namely, the
Kyoto Protocol (KP).
Glazewski list a number of principles that underlie the UNFCCC. One

principle is particularly important, namely, the principle of ‘‘common but
differentiated responsibilities’’ (CBDR), which turns on the notions of
‘‘equity’’ and ‘‘fairness’’. This principle implies that countries have the
general obligation of combating climate change but recognises that countries
have ‘‘different responsibilities depending on their individual capacities’’
(Glazewksi International climate change law 3–7).
71
3.11.2.3 The Kyoto Protocol (KP)
The KP was adopted in December 1997 but only came into force in 2005 (due
to slow ratification by countries). According to the KP, parties (countries)
agreed to the following:
. Developed countries are legally bound to emission reduction targets (i.e.
they must reduce their GHG emissions).
. Developed countries named in Annex 1 of the KP are expected to reduce
their GHG emissions (by an average of 5,2% below 1990 levels).
. The first commitment period for developed countries would end in 2012.
. The new commitment period would start in 2012 and end in 2020.
. Developing countries are known as non-Annex I countries and are not
required to limit their HGH emissions. This is based on the principle of
‘‘common but differentiated responsibilities’’ (CBDR), which
acknowledges that developed countries are historically the biggest GHG
emitters and they have gained the most benefit from their (GHG emission)
developments. The question was righty asked why developing countries
should slow their development when developed countries caused climate
change in the first place.
. The principle of CBDR is also referred to as ‘‘fairness’’ or ‘‘equity’’. In
essence, it confirms that countries have different responsibilities,
depending on their individual capacities. For the sake of development
and poverty alleviation, developing countries (such as South Africa) were
not required to limit their GHG emissions and could therefore continue with
GHG-based development (Glazewksi International climate change law
3–7).
. The principle of CBDR requires developed countries to assist developing
countries (which are vulnerable to climate change) by providing financial
assistance (costs of adaptation) and transferring knowledge, technologies
and so on (Glazewksi International climate change law 3–7).
Issues with the Kyoto Protocol

While many developed countries (Annex I) stayed true to their commitments
under the KP, some countries (the USA) never agreed to and others (Canada
and Japan) withdrew from the KP. Since some developed countries did not
agree to the KP and all developing countries did not have to agree to it, little, if
any, real progress is made in limiting global GHG emissions. Therefore, it
seems as if the impacts of climate change are not and will not sufficiently be
addressed until the KP’s expiry date of 2020 (Kotzé et al Climate change law
and governance in South Africa – setting the scene 1–4; 1–10).
3.11.2.4 The build-up to the Paris Agreement

A number of further meetings and negotiations, looking to improve on
previous climate change agreements, took place. Some were more successful
than others. What follows is a listing of some of them:
72
. The 2007 Bali Road Map (a set of forward-looking decisions mainly on
charting the way for a new negotiating process)
. The 2009 Copenhagen Accord (countries pledged emission reduction
targets – all non-binding)
. The 2010 Cancun Agreement (focused on international cooperation on
adaptation measures)
. The 2011 Durban Platform for Enhanced Action (known as the Durban
outcomes), where an agreement was reached on a road map for
implementation. Countries seemed to recognise
– the need for a new global legal agreement that will deal with climate
change beyond 2020
– that developing countries will continue to need support to adapt to
climate change (particularly the poor and vulnerable in developing
countries)
. The 2012 Doha Amendment to the Kyoto Protocol, whereby

– agreement was reached on a timetable to adopt a universal
agreement by 2015, to come into effect in 2020
– further emphasis was placed on the need for countries to increase
their ambition to cut GHG emissions
– it was recognised that developing/vulnerable countries need help to
adapt to climate change
. The 2013 Warsaw Outcomes, which, among other things, continued to

focus on parties’ ‘‘intended nationally determined contributions’’ (INDCs),
that is, their contributions to decrease their GHG emissions
. The 2014 Lima Call for Action, where countries agreed on ground rules on
contributions to the planned 2015 Paris Agreement
3.11.2.5 The Paris Agreement (from 2020 onwards)

Realising the shortcomings of the KP, countries (parties to the UNFCCC) met
in Paris (21st Session of the COP, December 2015) with the aim of
strengthening their efforts to combat the impacts of climate change from
2020 onwards. This came to be known as the Paris Decision and Agreement
(Paris Agreement). It came into force on 4 November 2016.
The Paris Agreement is significant because

. all countries (not only developed countries) committed to implementing
measures to limit their GHG emissions and generally to deal with the
impacts of climate change and, therefore, it is completely different from
the way that the KP was structured to combat climate change
. it allows for countries to make voluntary contributions (nationally
determined contributions)
. the nationally determined contributions work on the premise of
progression over time whereby countries will increase their
contribution by decreasing their GHG emissions
73
. it is the first time that the role of non-party stakeholders has expressly
been acknowledged (these parties include international standard-setting
organisations, multinational companies, non-governmental organisations,
transnational movements and epistemic communities) (Kotzé et al Climate
change law and governance in South Africa – setting the scene 1–4; 1–10)
. under the presidency of Barack Obama, the USA committed to the Paris
Agreement; however; president Donald Trump withdrew the USA from the
agreement
. although the US officially withdrew, many public and private institutions
(for example, the mayors of major US cities, Tesla, Pepsi, Coca Cola,
Walmart and Disney) have vowed to stay true (at least in principle) to the
Paris Agreement (Dominic Rushe ‘‘Elon Musk and Disney boss quit
Trump’s business panel over Paris pullout’’ 2 June 2017 The Guardian
https://www.theguardian.com/technology/2017/jun/02/elon-musk-and-
disney-boss-quit-trumps-business-panel-over-paris-pullout accessed
2017/06/06)
Self-assessment
There are a number of bodies and international agreements

that attempt to deal with the impacts of climate change.
Activity 11 1. Describe the Intergovernmental Panel on Climate
Change (IPCCC) and the United Nations Framework
Convention on Climate Change (UNFCCC). Pay
particular attention to their respective main objectives.
2. Identify the main positive and negative issues stemming
from the Kyoto Protocol.
3. Describe the principle of ‘‘common but differentiated
responsibilities’’.
4. Describe the significance of the Paris Agreement
3.11.3 Mitigation, adaptation and climate-resilient

development
You have already taken note of one measure to tackle climate change, namely,
reducing GHG emissions. There are also others measures. Here follows a
description of the main responses to climate change.
Mitigation and adaptation are the main responses to tackle the impacts of
climate change (Kotzé et al Climate change law and governance in South
Africa – setting the scene 1–19). Another important concept is that of climate-
resilient development. But what do these measures mean and where do they
come from?
Mitigation
Article 4(2)(a) of the UNFCCC states that all parties (countries) ‘‘shall adopt
74
national policies and take corresponding measures on the mitigation of
climate change, by limiting its anthropogenic emissions of greenhouse gases
and protecting and enhancing its greenhouse gas sinks and reservoirs.’’
Mitigation is defined by the IPCCC as ‘‘an anthropogenic intervention to

reduce the source or enhance the sinks of greenhouse gases’’ (https://
www.ipcc.ch/organization/organization.shtml accessed 2017-04-02).
Mitigation is about ways to reduce or prevent the emission of greenhouse

gasses. Usually, the focus will be on large emitting sectors such as transport
and energy (http://unfccc.int/focus/mitigation/items/7171.php accessed
2017-04-02). This can be done by a number of ways such as
. by making use of new technologies
– to generate electricity by renewable sources such as the wind and the
sun (think solar panels, wind turbines, etc)
– to make equipment more energy efficient (e.g. improvements to coal-
fired power stations, cooking stoves, transport (vehicles, planes, etc)
. by changing consumer behaviour (e.g. increasing the price of certain

goods)
Adaptation
Article 4(1)(e) of the UNFCCC commits all parties (countries) to ‘‘co-operate in
preparing for adaptation to the impacts of climate change’’. Adaptation is
defined as
adjustments in ecological, social or economic systems in response to actual
or expected climatic stimuli and their effects or impacts. It refers to changes
in processes, practices and structures to moderate potential damages or
benefit from opportunities associated with climate change (UNFCCC http://
unfccc.int/focus/adaptation/items/6999.php accessed 2017-04-01).
In other words, adaptation is about making changes in ecological, social or

economic systems in order to soften the impacts of climate change.
Adaptation, then, is a mechanism that tries to lower the risks posed by the
impacts of climate change. It is also about making the most of the possible
opportunities that climate change may offer. For example, an area that used to
be water scarce could possibly receive more water (due to climate change)
and therefore new crops can be cultivated in that area. Another example is to
‘‘catch’’ water during a flood or floods by making use of new/better
technology and designs. This water can then be used in times of drought or
possibly be pumped to areas that need water at a specific time.
The UNFCCC (http://unfccc.int/adaptation/items/7006.php#Observation)

indicates that adaptation turns on the following mechanisms:
. Observation (for example by researching existing data on potential climate
change impacts on a specific sector or region)
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. Assessment of impacts and vulnerability (identifying options to adapt to
climate change by looking at conditions such as availability, benefits,
costs, effectiveness, efficiency and feasibility)
. Planning (planning and prioritising changes where possible)
. Implementation (implementing those changes or plans)
. Monitoring and evaluation (monitoring the effectiveness of changes made
– need to be revised if needed)
Climate-resilient development
It is developing countries that particularly face the challenge of achieving
economic development while simultaneously being resilient to the impacts of
climate change. Put differently, the challenge for developing countries is to
build their economies and their people and at the same time to manage the
change to lower-carbon economies and societies (Kotzé et al Climate change
law and governance in South Africa – setting the scene 1–20).
To do this (i.e. being climate resilient while developing), developing countries

‘‘assess total climate risk by identifying the range of measures available to
address the risks as well as the costs and benefits of such measures’’ (Kotzé
et al Climate change law and governance in South Africa - setting the Scene
1–20).
Self-assessment
1. Name the main responses to the challenge of climate

change.
Activity 12 2. Describe how each response tries to tackle the
challenge of climate change.
3. Give examples of each type of response to climate
change.
4. Which response to climate change do you think is more
effective? Motivate your opinion.
5. Why is climate-resilient development a particular issue
for developing countries?
3.11.4 South Africa
3.11.4.1 Introduction
Because of its high reliance on coal-based energy, South Africa is the highest
GHG emitter in Africa and one of the highest GHG emitters (per capita) in the
world (Kidd Environmental law 331–332). The issue of climate change in South
Africa is therefore closely linked to energy production. The extraction,
production and use of energy all contributes to climate change in South
Africa (Glazewksi International climate change law 3–5).
76
Glazewski refers to a number of specific issues of concern or risks due to the
impacts of climate change to South Africa. They include
. the effect of changing rainfall patterns on water resources

. crop production and livestock
. a likely increase in insect-borne diseases (for example malaria)
. reduced forestry plantations
. rising sea levels (threat to coastal zones)
. changes in oceanic conditions (negative implications for fisheries and
general biodiversity) (Glazewksi International climate change law 3–4;
3–5)
3.11.4.2 Policy and commitments on climate change

The National Climate Change Response Policy (NCCRP) confirms South
Africa’s commitment to contribute to the global effort to stabilise GHG
concentrations in the atmosphere, but indicates that this effort must be
balanced against the national priorities of sustainable development, job
creation, poverty eradication, better public and environmental health and
social equality (Kotzé et al Climate change law and governance in South Africa
– setting the scene 1–6).
In terms of international commitments to reduce its GHG emissions, the South

African government committed itself to a Nationally Appropriate Mitigatory
Action (NAMA) as part of the Copenhagen Accord. This specific commitment
(Copenhagen Accord) is not legally bounding.
More significantly, South Africa ratified the more recent Paris Agreement (a
legally binding instrument) and committed to ultimately reducing its GHG
emissions.
3.11.4.3 Legislation on climate change

Currently (as at March 2017), South Africa does not have any specific stand-
alone legislation that directly addresses climate change issues. For example,
you will not find any Act in South Africa that contains ‘‘climate change’’ in its
title. However, several legislative and other measures have been and are
being put in place by government to address climate change issues (Kotzé et
al Climate change law and governance in South Africa – setting the scene
1–23).
Legislative measures focus on the environmental laws related to NEMA,

namely, the specific environmental management Acts (SEMAs) (Kotzé et al
Climate change law and governance in South Africa – setting the scene 1–23).
These SEMAs either play or possibly will play a role in addressing climate
change issues. What follows are some examples of SEMAs:
. The National Environmental Management Air Quality Act (NEMAQA) has
the following in draft form (as at March 2017): It declares GHG as priority
air pollutants and requires that certain processes have approved pollution
77
prevention plans (Kotzé et al Climate change law and governance in South
Africa – setting the scene 1–22).
. The anticipated carbon tax (see the Draft Carbon Tax Bill 2015 and,
particularly, the Draft Carbon Offsets Regulations 20 June 2016) builds on
‘‘existing climate related fiscal measures such as: the levy on electricity
generation, the levy on incandescent light bulbs, emission tax (CO2) on
new vehicles, income tax exemptions for the sale of carbon credits, energy
efficiency tax deduction, and a depreciation allowance for investments in
renewable energy and biofuels’’ (Kotzé et al Climate change law and
governance in South Africa – setting the scene 1–23).
. The National Environmental Management Waste Act (NEMWA), in
conjunction with the National Waste Management Strategy, provides for
the reduction of waste and hence follows a mitigation approach to waste-
related GHG emissions (Kotzé et al Climate change law and governance in
South Africa – setting the scene 1–22).
. The National Water Act (NWA) operates by the mechanism of compulsory
licensing for irrigation (adaptation).
Other legislation includes the following:

. The Spatial Planning and Land Use Management Act 16 of 2013
(SPLUMA) addresses climate change impacts by including adaptation
measures in local municipal land use systems (Taylor et al ‘‘Urban
adaptation’’ 11–13 in Kotzá et al (eds) Climate change law and
governance in South Africa).
. The Local Government Municipal Systems Act 32 of 2000 has the potential
to incorporate climate change adaptation measures in the integrated
development plans (IDPs). In addition, the same Act can be used to
incorporate climate adaptation objectives, targets and indicators into local
municipal performance systems (Taylor et al ‘‘Urban adaptation’’ 11–10 in
Kotzé et al (eds) Climate change law and governance in South Africa).
. The Disaster Management Act 57 of 2002 (DMA) provides the institutional
framework for climate disaster prevention, reduction and mitigation (Van
den Berg, Du Plessis and Murphree ‘‘Local disaster risk reduction and
management in South Africa’s response to climate change’’ 12–16 in
Kotzé et al (eds) Climate change law and governance in South Africa).
Strategic plans that address climate change include the following:

. A number of provincial and national government departments have
strategic plans dealing with climate change. The Departments of Health,
Agriculture, Forestry and Fisheries (DAFF), and Energy (with its
Independent Power Producer Programme for renewable energy) are
examples of departments that have such strategic plans in place (Kotzé
et al Climate change law and governance in South Africa – setting the
scene 1–23).
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You should now have taken note that South Africa
. does have a formal policy on climate change
. has made previous commitments to address the impacts of climate
change (both adaptation and mitigation)
. ratified the Paris Agreement
. has implemented a number of legislative (and other) measures to address
the challenges of climate change
. does not have ‘‘stand-alone’’ legislation on climate change, but legislation
has been incorporated in the specific environmental management Acts
(SEMAs)
3.11.5 South Africa’s first climate change court case

On reading NEMA you will realise that it does not explicitly require an EIA to
include an assessment for potential serious climate change impacts. A case
was brought to court where this was challenged. This case was South Africa’s
first climate change court case.
Case details can be found in the following sources:

. Earthlife Africa Johannesburg v Minister of Environmental Affairs and others
2017 in the High Court of South Africa, Gauteng Division, Pretoria 65662/
16 http://cer.org.za/wp-content/uploads/2017/03/Judgment-Earthlife-
Thabametsi-Final-06-03-2017.pdf
. Centre for Environmental Rights (CER) ‘‘Winning SA’s first climate change
court case: what it means for affected communities, industry, government
and the people of South Africa’’ 5 April 2017 http://cer.org.za/news/
winning-sas-first-climate-change-court-case-what-it-means-for-affected-
communities-industry-government-and-the-people-of-south-africa
(accessed 2017-04-15)
Background
Thabametsi Power Company (Pty) Limited was a preferred bidder in a
government plan to construct a number of coal-fired power stations (privately
owned) in South Africa (CER ‘‘Winning SA’s first climate change case’’). The
applicant (Earthlife Africa) argued that the environmental authority (in this
case the Department of Environmental Affairs) gave its environmental
authorisation (i.e. permission to build the power station) without considering
any of the potential climate change impacts of the project (CER ‘‘Winning SA’s
first climate change case’’).
Ruling
In this case the North Gauteng High Court handed down its ruling on
8 March 2017. The court agreed with the applicant (Earthlife Africa) that the
environmental authority did not adequately consider the potential climate
change impacts of the project before issuing the environmental authorisation
(CER ‘‘Winning SA’s first climate change case’’).
79
The respondents did not appeal the decision. It would be interesting to see
what the outcome will be of similar matters (if brought before a court to be
adjudicated). One can assume similar cases will follow.
Possible implications of the ruling

. The potential climate change impact(s) of every project must be
individually assessed by the applicable environmental authority.
. The environmental authority must exercise its discretion in an independent
manner.
. The judgment reads that [para 82] ‘‘[a] plain reading of section 24O(1) of
NEMA confirms that climate change impacts are indeed relevant factors
that must be considered. The injunction to consider any pollution,
environmental impacts or environmental degradation logically expects
consideration of climate change.’’ In other words, although NEMA does
not specifically refer to climate change, the potential impacts of climate
change are still linked to ‘‘any pollution, environmental impacts or
environmental degradation’’.
. NEMA seems to indirectly require by way of an EIA a comprehensive
assessment of potential serious climate change impact(s) for all projects.
. An assessment of potential serious climate change impacts needs to be
done before any decision is made on whether to authorise a specific
project.
. The EIA assessment of climate change impacts of a project must not
simply be a quantification of the greenhouse gas emissions of the project:
it must also include an assessment of the broader climate change impacts
(like water scarcity and health), and how the project would make them
worse. The assessment must also consider the extent to which the viability
of the project itself will be affected by those climate change impacts.
. In considering whether to authorise a development with significant climate
change impacts, the environmental authority must determine which, if any,
measures are required to reduce the emissions of the project and to
ensure the resilience of the project and the surrounding environment to
those impacts (CER ‘‘Winning SA’s first climate change case’’).
You should have noticed that the court confirmed that

. NEMA’s requirement that ‘‘any pollution, environmental impacts or
environmental degradation’’ must be considered (by way of an EIA)
includes the consideration of climate change impacts;
. there is a clear link between climate change impacts and ‘‘any pollution,
environmental impacts or environmental degradation’’.
Some projects may have serious climate change impacts.

Explain how the court in Earthlife Africa Johannesburg v
Activity 13 Minister of Environmental Affairs and others interpreted
NEMA on whether an EIA is required in such instances.
80
HINT: Refer to Earthlife Africa Johannesburg v Minister of Environmental Affairs and
others 2017 in the High Court of South Africa, Gauteng Division, Pretoria
65662/16.

With this rather lengthy overview of the international law dimension of
environmental law, including the regulation of climate change, we have come
to the end of the first theme in this Environmental Law study guide.
In Theme II we will discuss environmental law in the ‘‘new’’ South African

constitutional context (i.e. the role of the 1996 Constitution), the role of
constitutional law per se in the management of the environment, and the
impact of a number of rights found in the Bill of Rights, which play a significant
role in upholding the environmental right that is recognised in section 24 of the
Constitution.
81
82
THEME II
THE CONSTITUTION OF THE REPUBLIC OF

SOUTH AFRICA, 1996 AND
ENVIRONMENTAL LAW
83
STUDY UNIT
4
The Constitution of the Republic of South
Africa, 1996 and framework environmental
legislation – the National Environmental
Management Act 107 of 1998 (NEMA)
OVERVIEW
In this fourth study unit (the first study unit of Theme II) we present you, by way of an
introduction, with a brief overview of the general characteristics of the Constitution and
some remarks on the objective and purpose of the Constitution. In other words, we
investigate and emphasise certain basic elements of the Constitution that have a significant
impact on the nature, implementation and enforcement of environmental law in South
Africa. In essence, this study unit deals with environmental law in its constitutional context.
Next we will examine the content and the scope of the environmental right provided for in
section 24 of the Constitution. (In examining the ‘‘scope’’ of the right, we consider the extent
or the reach of the right.) Our examination takes the form of an analysis of the key phrases
we encounter in section 24. We also consider a number of fundamental rights that are
relevant to or have an impact on the management and protection of the environment. To put
it differently, we will explore other fundamental (human) rights that generally support
environmental management and protection. In this study unit we also examine features of
the Bill of Rights that affect the "use" (application) of fundamental rights. Such features
include the question of legal standing (s 38 of the Constitution); the limitation of rights
provided for in section 36; and interpretation of the Bill of Rights as provided for in
section 39.
In our investigation of section 24 (the environmental right), we will discover that the
Constitution instructs the legislature to adopt ‘‘legislative measures’’ to realise the
environmental right. The legislation adopted in compliance with the constitutional directive
is the National Environmental Management Act 107 of 1998 (NEMA). Although the content
of NEMA is analysed in the next study units, we need to consider two pertinent features of
the Act in this study unit: firstly, we need to explore NEMA as ‘‘framework’’ legislation and
what this concept (‘‘framework legislation’’) means and, secondly, we need to investigate
the content of the ‘‘national environmental principles’’, which section 2 of NEMA sets out to
apply ‘‘throughout the Republic to the actions of all organs of state that may significantly
affect the environment’’.
84
& explain the general characteristics of the Constitution briefly

& mention the sections of the Constitution that are important for environmental law
(or should we consider the entire Constitution as important?)
& recognise the importance of the Bill of Rights for the protection of the environ-
ment
& ‘‘unpack’’ (explain) the content of the environmental right provided for in section
24 of the Constitution
& discuss fundamental rights that have an impact on the administration and control
of environmental management and protection
& explain the purpose of the limitation of rights clause in the Constitution and
discuss the clause’s provisions
& discuss the provision for locus standi as found in both the Constitution and NEMA
& explain the content of the interpretation clause provided for in the Constitution
& explain what ‘‘framework’’ legislation means
& identify the principles in NEMA that are unique to environmental law and the
environment
PLEASE NOTE: It is important that you obtain your own copy of the
Constitution of the Republic of South Africa, 1996 and
an up-to-date copy of the National Environmental
Management Act 107 of 1998 (NEMA).
PLEASE NOTE FURTHER: The Citation of Constitutional Laws Act 5 of
2005, which came into operation on 27 June 2005,
provides that the Constitution will simply be known as
the Constitution of the Republic of South Africa, 1996
and will not be associated with the number 108. All
subsequent amendments to the Constitution will be
indicated and identified as the first, second, et cetera
amendment to the Constitution of the Republic of South
Africa.
4.1 General characteristics of the Constitution

4.1.1 Introduction
The 1996 Constitution has been in operation since 4 February 1997. To
understand the impact of the new dispensation on environmental law, we need
to briefly examine the importance of the new South African constitutional
85
democracy in a more general sense. The Constitution is the supreme law of
our country. What would you say is the effect of the supremacy of the
Constitution? Section 2 defines ‘‘constitutional supremacy’’ as follows.
& The Constitution is the supreme law of our country. Section 2 defines
‘‘constitutional supremacy’’ as follows:
This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled.
In essence, section 2 ‘‘specifies the effect’’ of the supremacy of the

Constitution (Roederer 2005 CLOSA 13–18). The Constitution has evolved
through a democratic process of negotiation in which most South Africans
were represented. It is a value-laden and ‘‘value-driven’’ document and all
other laws must be interpreted in terms of the values, spirit and purport of
the Constitution and its Bill of Rights (see s 39, discussed under 4.4.4
below).
& All other legislation (parliamentary legislation included) is subordinate to
the Constitution and may be declared invalid or null and void by a court of
law (e.g. by the Constitutional Court) if it conflicts with the Constitution.
Therefore, in contrast to parliamentary supremacy established under the
previous government – where Parliament could adopt and repeal its own
legislation fairly easily – the present Parliament is not supreme and can
amend the Constitution, as the supreme law, only by means of complex,
prescribed procedures. Note that all ‘‘conduct’’ must also be consistent
with the Constitution (s 2). This means, inter alia, that the functions and
actions performed in the various spheres of government by other organs
of state and public bodies, and which relate to the environment, must be in
line with the provisions of the Constitution.
& The Constitution sets out the structure of the state and its organs (e.g. the
president and the executive – sections 82–102; the legislature – sections
42-82; and the judiciary (‘‘courts and administration of justice’’) – sections
165–180). It also provides for the organisation of the state and determines
the powers and functions of its functionaries (e.g. through the principles of
cooperative governance and intergovernmental relations – Ch 3 of the
Constitution – and the basic values and principles governing public
administration – Ch 10 of the Constitution).
PLEASE NOTE: As you are in the fourth year of your studies, we assume
you have completed the constitutional law module and
that you are therefore familiar with the structure of the
South African government, the distribution of state
powers and authority, and so on. If you are unable to
recall any of these features of constitutional law, we
suggest you return to your Constitutional Law study
guide or any basic textbook on constitutional law to
refresh your memory.
86
PLEASE NOTE FURTHER: In study unit 5 we examine the content of
Chapter 3 of the Constitution, entitled ‘‘Cooperative
government’’, since cooperative government provisions
in relation to the environment are an important feature of
the National Environmental Management Act 107 of
1998 (NEMA).
The ‘‘Basic values and principles governing public
administration’’, provided for in Chapter 10 of the
Constitution, will be discussed briefly below under
4.3.2.2.
& Chapter 2 of the Constitution contains the Bill of Rights (ss 7–39), in which
the state (and all its organs) undertakes to guarantee and protect
fundamental human rights, such as the right to life, dignity, privacy and
equality. Furthermore, the right to education, employers’ and employees’
rights, the rights of prisoners and detainees, freedom of expression,
association, religion, belief and opinion, and a right to the environment
and a right to just administrative action are among the many rights and
freedoms protected by the state.
& The Bill of Rights is a justiciable bill of rights, which means that the courts
will judge the enforcement of human rights. In this context, the courts will
interpret and define the content of these rights (e.g. the right to the
environment), with the Constitutional Court as the final arbiter where
issues regarding human rights are concerned.
& Fundamental rights are not absolute and therefore do not apply in an
unqualified way. This means that in all situations where these rights are in
question, the competing rights and duties of the various parties involved
have to be weighed up against each other in order to restore legal
balance. Furthermore, the limitation clause in the Bill of Rights provides
that these rights may be limited by laws of general application in situations
where such a limitation would, for example, be reasonable and justifiable
(s 36).
Identify five characteristics/features of the Constitution and

discuss how they affect environmental affairs.
Activity 1

HINT: Return to the discussion above and once again look at the characteristics
of the Constitution that we highlighted. Which characteristics do you think
have an impact on environmental affairs? Substantiate your viewpoint.
87
HINT: The Constitution is the supreme law of our country. This means, inter alia,
that the functions and actions performed in the various spheres of
government by other organs of state and public bodies, and which relate
to the environment, must be in line with the provisions of the Constitution.
HINT: Chapter 2 of the Constitution contains the Bill of Rights (ss 7-39), in which
the state (and all its organs) undertakes to guarantee and protect
fundamental human rights, such as a right to the environment.
4.1.2 The objective and purpose of the Constitution

What, in your opinion, is the purpose of the Constitution?
In the Preamble to the Constitution, the people of South Africa recognise the
injustices of the past and undertake to build a better South Africa for all. All
South Africans, through the adoption of the supreme Constitution, are bound
to tackle, in a spirit of reconciliation and reconstruction, the objectives of the
new democratic order, for example
. to establish a society based on democratic values, social justice and
fundamental human rights
. to lay the foundations for a democratic and open society in which
government is based on the will of the people and every citizen is equally
protected by law
. to improve the quality of life of all citizens and free the potential of each
person
. to build a united and democratic South Africa that is able to take its rightful
place as a sovereign state in the family of nations
In conjunction with the ‘‘Founding Provisions’’ in Chapter 1, these provisions

emphasise and underline the foundations of the new legal order and reinforce
and amplify the underlying, core principles or values on which the new
democratic state is founded.
The umbrella term for the objectives of the new democratic order is
‘‘transformation’’. Ngcobo J, in Bato Star Fishing (Pty) v Minister of
Environmental Affairs and Tourism 2004 4 SA 490; 2004 7 BCLR 687 (a
decision dealing with the allocation of fishing quotas in terms of the Marine
Living Resources Act 18 of 1998), stated the following (at par 73):
South Africa is a country in transition. It is a transition from a society based

on inequality to one based on equality. This transition was introduced by the
interim Constitution, which was designed ’to create a new order based on
equality in which there is equality between men and women and people of all
races so that all citizens should be able to enjoy and exercise their
fundamental rights and freedoms’. This commitment to the transformation of
our society was affirmed and reinforced in 1997, when the Constitution came
into force. The Preamble to the Constitution ’recognised the injustice of our
88
past’ and makes a commitment to establishing ’a society based on
democratic values, social justice and fundamental rights’. This society is
to be built on the foundation of the values entrenched in the very first
provision of the Constitution.
A note on the concept ‘‘foundational provisions’’:

Chapter 1 of the Constitution (ss 2–6) contains some of the ‘‘values’’ or
‘‘principles’’ upon which the new order is founded or based. (Note we said
‘‘some’’, since academics have argued that Chapter 1 does not contain all
the constitutional principles or values that must be considered
foundational to the new constitutional order – see, for example,
Roederer (2005 CLOSA 13–3). This argument is understandable and
realistic since, as we have indicated earlier, the Constitution is a value-
laden document, in other words, values permeate the Constitution.
You may wonder what the purpose and/or function of these values is.
Roederer’s answer is perhaps the most descriptive and understandable
(2005 CLOSA 13–4):
... the notion of ... the founding values [functions] as a measuring

standard for all government conduct; as a set of values that influence
the interpretation of the Final Constitution, the Bill of Rights and other
legislation; and as a set of values that influences both whether and
how the common law is to be developed.
What is the umbrella term for the objectives of the new

democratic order? Having identified the umbrella term,
Activity 2 indicate how it is also relevant for the protection and
management of the environment.

The umbrella term is ‘‘transformation.’’ HINT: In study unit 1 we also discussed the
inherent link of environmental law with equity, transformation, redress and justice.
The idea of equity is at the centre of sustainable development because it (equity)
embraces both (i) the concept of inter- and intragenerational equity and (ii) the need
to meet basic human needs (Field née Humby at 415 and 419). This, in turn, informs
notions of transformation and redress because ‘‘basic human needs cannot be
met if there is no transformation’’ (Kidd 301 refers to Field at 416). Put differently,
transformation is needed in addressing the ‘‘deep fault line that divides human
89
society between the rich and the poor’’ or redressing the unequal distribution of
harm previously caused (Kid at 301–302 and Field at 416, quoting the Johannesburg
Declaration on Sustainable Development 2002).
Can you identify some of the elements of sustainable

development in the objective and purpose of the
Activity 3 Constitution?

HINT: Some of the principles or values mentioned in the Preamble should
certainly feature in your answer; the question is: Which ones? If you are
uncertain about the meaning of the concept ‘‘sustainable development’’,
refer back to study unit 1. In study unit 1 you learned about the ethic of
sustainable development. You learned that sustainable development is
particularly important in the new South African constitutional dispensation,
since it supports and promotes the establishment and growth of a ‘‘new
democratic order’’ that is focused on, among other things, the improve-
ment of the ‘‘quality of life of all citizens’’ (see the Preamble to the
Constitution).
You now have a broad overview of the basic characteristics, values, norms
and principles of the Constitution and how (and to what extent) they affect
environmental governance.
The discussion below concentrates on the impact of the Bill of Rights on the
environment and its management.
4.2 The Bill of Rights and protection of the

environment
4.2.1 Introduction: Why an environmental right is
important
Why do you think an environmental right is important?
Van der Linde and Basson (2010 CLOSA 50–8) are of the opinion that
considerable benefits are attached to a ‘‘constitutionally entrenched
environmental right’’. They mention three benefits. In the first place, such a
right provides a ‘‘safety net’’ if and when existing laws or policies fail to
address an environmental problem. Secondly, an environmental right can act
90
as ‘‘a brake’’ on economic programmes that harm the environment. Finally,
the provision of ‘‘procedural environmental rights’’ should promote greater
public participation in the process of ‘‘interpreting and enforcing substantive
environmental rights’’.
The following discussion gives a broad outline of the environmental right and
its development in South Africa.
4.2.2 The content (nature and scope) of the environmental

right
For a discussion of the content of the environmental right you need to study
the following abstract in your e-reserve: Glazewski J ‘‘The bill of rights and
environmental law’’ in Environmental law in South Africa (2013), 5–3 to 5–4;
5–10 to 5–12; 5–14 to 5–21. NOTE: THIS ABSTRACT MUST BE STUDIED AS
AN INTEGRAL PART OF YOUR STUDY MATERIAL.
In working through the abstract you have to focus on the following: (the
sections in the abstract that are not referred to below can be read as
background information)
. The importance of the inclusion of an environmental clause in the Bill of
Rights since section 24 lays the foundation for the development of
environmental law jurisprudence in South Africa
. The environmental clause, section 24; note that section 24 of the
Constitution comprises two components: subsections (a) and (b)
. The following elements of section 24(a):
– ‘‘environment’’
– ‘‘health’’
– ‘‘well-being’’
. The following elements of section 24(b):

– the right to have ‘‘the environment ... protected’’
– ‘‘... for the benefit of present and future generations’’
– ‘‘... through reasonable legislative and other measures’’
– ‘‘... that prevent pollution and ecological degradation’’
– ‘‘... that promote conservation’’
– ‘‘... ecologically sustainable development’’
– ‘‘.. while promoting justifiable economic and social development’’
91
PLEASE NOTE: Although a distinction is still drawn between civil and
political rights on the one hand and socio-economic
rights on the other (refer to the discussion by Glazewski
in your e-reserve), the idea of categorising rights in
various ‘‘generations’’ – ‘‘first’’, ‘‘second’’ and ‘‘third’’ –
is no longer tenable and rights are now regarded as
‘‘universal, indivisible and interdependent and
interrelated’’. See, for example, paragraph 5 of the
Vienna Declaration and Programme of Action adopted
by the World Conference on Human Rights on 25 June
1993 (UN Document A/Conf 157/23 (1993)).
Make a summary of section 24(a) as set out by Glazewski

(refer to pages 5–14 to 5–17 of the abstract.)
Activity 4

Section 24(a) provides that everyone has the right to an environment that is not
harmful to their health or well-being. You have to summarise the following terms:
. ‘‘Environment’’: Your summary must include the definition of the term as provided
in NEMA and a brief discussion of the term.
. ‘‘Health’’: Your summary must include a discussion of the distinction between
section 27 and section 24(a) of the Constitution. You must also refer to case law to
illustrate the court’s application of this right.
. ‘‘Well-being’’: Your summary must include a discussion of the term and reference
to case law to illustrate the court’s application of this right.
We added a brief discussion of Fuel Retailers Association of Southern Africa v

Director-General Environmental management, Department of Agriculture,
Conservation and Environment, Mpumalanga Province (the decision is
reproduced in your e-reserve) since it (Fuel Retailers) is at present the
leading Constitutional Court decision on the scope and the content of section
24(b) of the Bill of Rights.
In Fuel Retailers Association of Southern Africa v Director-General

Environmental Management, Department of Agriculture, Conservation and
Environment, Mpumalanga Province 2007 10 BCLR 1059; 2007 6 SA 4 (CC)
(referred to as Fuel Retailers), the Constitutional Court had to consider an
appeal against the decision of the Supreme Court of Appeal in reviewing the
nature and the scope of the obligations of environmental authorities when they
make decisions that may have a substantial detrimental impact on the
92
environment. The applicant was an organisation representing the interests of
fuel retailers. The respondents were the various environmental authorities
involved in granting an authorisation to build a petrol filling station, the
Mbombela local municipality (who granted a rezoning application), Lowveld
Motors (Pty) Ltd and the trustees of a trust, who had been granted the
rezoning and authorisation to build the filling station.
The applicant for the review and setting aside of the decision to grant the
authorisation for the construction of the filling station lodged an appeal on the
grounds that the environmental authorities in Mpumalanga had neither
considered the socio-economic impact of constructing the proposed filling
station, nor the cumulative impact it would have on the environment and on all
existing filling stations that were close by. The respondents, in turn, contended
that these issues had been considered by the local authority when it granted
the rezoning application of the property for the purposes of constructing the
proposed filling station.
The Constitutional Court found that the local authority, when considering a
rezoning application, has to consider the need and desirability from a town-
planning perspective. An environmental authority, in turn, considers whether a
town-planning scheme is environmentally justified. An environmental authority
is obliged in terms of the Constitution, the Environment Conservation Act
(ECA) and NEMA to consider socio-economic factors as well as the
cumulative impact of the proposed filling station and existing ones, and the
impact of the proposed filling station on existing ones, whereas the local
authority is not obliged to do so in terms of the Ordinance. In section 24, the
Constitution provides for the integration of environmental protection and
socio-economic development. This means that environmental factors must be
balanced with socio-economic factors, as encapsulated in the concept of
sustainable development. The concept of sustainable development provides
the framework for reconciling socio-economic development and
environmental protection. The court noted (in par 45 and 102) as follows:
This is apparent from section 24(b)(iii) which provides that the environment
will be protected by securing ‘‘ecologically sustainable development and use
of natural resources while promoting justifiable economic and social
development’’. Sustainable development and sustainable use and exploita-
tion of natural resources are at the core of the protection of the environment.
... [T]he role of the courts is especially important in the context of the
protection of the environment and the giving effect to the principle of
sustainable development. The importance of the protection of the environ-
ment 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.
This 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.
93
The court held that the environmental authorities had not fulfilled their
obligations as required by section 24 of the Constitution, the ECA and NEMA.
As a result, the decision to grant the authorisation was set aside.
Carefully study the Fuel Retailers case (available in your e-

reserve) and identify and explain how the court dealt with the
Activity 5 following elements of section 24(b):
. ‘‘... for the benefit of present and future generations’’
. ‘‘... secure ecologically sustainable development while
promoting justifiable economic and social development" (s
24(b)(iii))

HINT: To answer the question, study the relevant sections of the abstract in your e-
reserve (Glazewski J ‘‘The bill of rights and environmental law’’ in
Environmental law in South Africa (2013), 1–19 to 1–20) and the Fuel
Retailers case carefully. You will note that the abstract includes a reference to
the BP Southern Africa case and sets out how the High Court applied the
relevant elements of section 24(b) in the BP Southern Africa case. You
therefore have to include the Constitutional Court’s application of the relevant
elements as set out in the Fuel Retailers case.
. ‘‘... for the benefit of present and future generations’’: Refer to and
incorporate, for example, the relevant portions of paragraphs 59, 75 and
102 of the Fuel Retailers case.
. ‘‘... secure ecologically sustainable development ... while promoting
justifiable economic and social development’’: Refer to and incorporate,
for example, the relevant portions of paragraphs 44, 45, 52, 53, 57, 58, 59,
61, 63, 71, 93, 102 and 113 of the Fuel Retailers case.
4.2.3 The limitation of a fundamental right, including the

environmental right: section 36 of the Constitution
You will probably recall from your initial studies (think back to your Introduction
to Law module), as well as the Fundamental Rights module later on, that no
rights apply absolutely. The boundaries of all rights are set by the rights of
others and by the public interest – the welfare and needs of the people/
community. Consequently, rights may be limited, including the environmental
right.
Section 7(3) of the Constitution states in this regard:

The rights in the Bill of Rights are subject to the limitations contained or
referred to in section 36, or elsewhere in the Bill.
94
Section 36 of the Constitution is the general limitation clause and applies to all
rights in the Bill of Rights. Section 36 will always feature when a court and/or
‘‘another independent and impartial tribunal or forum’’ (refer to s 34 of the
Constitution) has to determine whether a limitation of a right is lawful.
. Before limiting a right, the organ of state/administration must ensure that

the limitation is permissible, because rights may only be limited by way of
a "law of general application" in terms of section 36(1). In other words, any
limitation of rights must be authorised by law; that is, it must be lawful.
When environmental law is involved, this refers to legal rules contained in a
statute, or in any delegated legislation.
. All limitations must be ‘‘reasonable and justifiable’’ in an
– open and democratic society based on
– human dignity
– equality and
– freedom.
(It is important that you take note, once again, of the values spelled out in
the Constitution and referred to above.)
Other factors that must be taken into account in limiting a right are as follows:
(a) The nature of the right, for example, what is being protected in terms of the
right to a clean and healthy environment and what is the significance of
this right in an open and democratic society?
(b) The importance of the purpose of the limitation, for example, what public
purpose (or rights of others) is protected by the limitation and how
important is this purpose in an open and democratic society based on
fundamental values?
(c) The nature and the extent of the limitation, for example, how serious is the
transgression (contravention) for which the limitation is sought?
(d) The relation between the limitation and its purpose, for example, will the
limitation of the right to a clean and healthy environment further the
purpose of the limitation (for example, economic progress, trade and
employment opportunities) and, if so, how efficiently will it serve the
purpose?
(e) The use of less restrictive means to achieve the purpose, for example, are
there other ways of achieving the purpose that have a less restrictive
effect on the right?
The requirements set for the limitation of a right in section 36 means that there
must be a balance/proportionality between the limitation of the right and the
purpose for which the right is being limited. In other words, the limitation
clause refers in essence to the ‘‘principle of proportionality’’ as it has been
applied and developed by the Constitutional Court in several cases.
Proportionality relates to the means or the method used to achieve the

purpose – whether the means are proportional to the purpose, in other words,
95
whether there is an even balance between the means used and the ends
envisaged. (Refer to the provision of (d), ‘‘the relation between the limitation
and its purpose’’.)
Section 7(3) also refers to limitations ‘‘contained or referred to ... elsewhere in

the Bill’’. We find such a limitation referred to elsewhere in the Bill in section
24(b). Section 24(b) contains its own internal limitation, in that ‘‘reasonable
legislative and other measures’’ that are passed or taken must be to ‘‘(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.’’
Write approximately two paragraphs on the possible

limitation of the environmental right.
Activity 6

HINT: You need to study the provisions of section 36 carefully before you attempt
to write the two paragraphs.
Section 36 of the Constitution is the general limitation clause and applies to all
rights in the Bill of Rights, including the environmental right. Rights may only be
limited by way of a law of general application and all limitations must be
reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom. Certain factors must be taken into account in
limiting a right. The requirements set for the limitation of a right in section 36,
means that there must be a balance/proportionality between the limitation of the
right and the purpose for which the right is being limited.
Section 24(b) contains its own internal limitation, in that ‘‘reasonable legislative
and other measures’’ that are passed or taken must be to ‘‘(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.’’
96
Go back to the newspaper article reproduced at the
beginning of this study guide. Do you think that the limitation
Activity 7 of the right has any role to play in this set of facts?
This is not necessarily a hint, but as an advanced student you will know by now
that it is quite difficult to predict the outcome of a particular case, since each
case has to be evaluated in terms of its own facts and circumstances and on its
own merit. Moreover, it is hugely debatable whether an assignment ‘‘of
promoting justifiable economic and social development’’ should be dealt with
in environmental legislation, and whether an environmental right is the correct
context (framework) in which to include this particular issue. In short, justifiable
limitation in an environmental context is extremely difficult to factor into a
question such as the one regarding the newspaper report.
4.2.4 Who may enforce the environmental right: the matter

of legal standing (locus standi)
4.2.4.1 What is locus standi ?
Locus standi, or ‘‘legal standing’’, is the capacity of a person to bring a matter
to court. It is a basic rule of all legal systems that a party may take a matter to
court only if he or she has an identifiable interest in the outcome, that is, when
he or she has sustained loss or damage. Before 1994 and the introduction of
the new constitutional order, the requirement was that an applicant for judicial
review had to show that he or she had sufficient personal and direct interest in
the case. Financial/pecuniary or material/patrimonial loss was regarded as
sufficient to establish legal standing. In, for example, Dawnlawn Beleggings
(Edms) Bpk v Johannesburg Stock Exchange 1983 3 SA 344 (W), the potential
for economic gain was accepted as sufficient interest.
The actio popularis of Roman law did not form part of our law. In terms of the
actio popularis, every member of the public could bring actions to prevent
public dangers. The actio popularis was action in the public interest. In the
environmental law context, the actio popularis means that every person has an
interest in the proper management and protection of the environment and
every person is able to freely challenge any action threatening the
environment or the validity/legality of any action as regards the
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4.2.4.2 Locus standi in terms of section 38 of the 1996 Constitution
The Constitution has broadened the scope or the range of locus standi of
individuals and groups to seek relief in matters involving fundamental rights,
including the environmental right. In other words, more people who have
"identifiable interests in the outcome" of a case may now approach the court.
Section 38 of the Constitution, entitled ‘‘Enforcement of rights’’, provides that

anyone listed in the particular section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened.
Section 38 reads:
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 section then proceeds to identify the persons ‘‘who may approach’’ a
court. They 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
(e) an association acting in the interest of its members
PLEASE NOTE: The first four persons refer to ‘‘anyone’’ and the last one
to ‘‘an association’’ representing its members. The
effect of this extension of standing is that individuals or
non-governmental organisations may now approach a
court to bring an action in the public interest. For
example, a group of concerned persons may approach
the court in the public interest to protect the environment
– the above-mentioned actio popularis.
4.2.4.3 Locus standi in terms of NEMA: section 32

NEMA expanded legal standing in environmental matters even further under
section 32. (The section has been amended by section 6(a) of the National
Environmental Management Amendment Act 46 of 2003 to allow a broader
spectrum of persons/organisations and the public to approach the court,
where they have some form of environmental interest in the case.)
Section 32(1) reads:

Any person or groups of persons may seek appropriate relief in respect of
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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 environment or the use of natural resources –
(a) in that person’s or group of person’s 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.
It is noticeable that section 32, unlike section 38 of the Constitution – which

only grants legal standing (locus standi) to persons and associations when
rights in the Bill or Rights are threatened – adds to the circumstances in which
relief may be sought when the environment is involved. When we read section
32(1)(e), we notice that it allows any person or group of persons to seek
appropriate relief in respect of (i) any breach or threatened breach of any
provision of NEMA, (ii) its section 2 principles (contained in Chapter 1), or (iii)
any violation of any other statutory provision dealing with the protection of the
environment. The only ‘‘limitation’’ is that the person must act in the ‘‘interest
of protecting the environment’’.
The effect of the extension of legal standing when environmental matters are
involved is summarised by Glazewski in the following way (2005:123):
The liberalisation of the locus standi requirement by the Bill of Rights,

coupled with the extension of the circumstances in which one may litigate in
the public environmental interests provided in the NEMA, considerably
increases the opportunities for public interest litigation in the environmental
sphere. It should be noted that these provisions apply in respect of court
proceedings only and not to other tribunals.
Explain how section 32 of NEMA expanded legal standing in

environmental matter.
Activity 8

HINT: Note the extended locus standi provisions of both section 38 of the
Constitution and section 32 of NEMA.
Section 32 of NEMA, unlike section 38 of the Constitution – which only grants legal
standing (locus standi) to persons and associations when rights in the Bill or Rights
are threatened – adds to the circumstances in which relief may be sought when the
environment is involved. Section 32(1) allows any person or group of persons to
seek appropriate relief in respect of (i) any breach or threatened breach of any
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provision of NEMA, (ii) its section 2 principles (contained in Chapter 1), or (iii)
any violation of any other statutory provision dealing with the protection of the
environment. The only ‘‘limitation’’ is that the person must act in the ‘‘interest of
protecting the environment’’.
4.2.5 The interpretation of the Bill of Rights

Section 2 of the 1996 Constitution stipulates, inter alia, that the Constitution is
the supreme law of the Republic. In terms of section 7(2), the state must
respect, protect, promote and fulfil the rights in the Bill of Rights. However, all
these rights are subject to the limitations provided for in section 36 of the Bill
of Rights.
In the context of the supremacy of the Constitution, the state’s obligations as

regards the rights contained in the Bill of Rights and the reality that no right is
absolute and that provision therefore has to be made for the limitation of rights
(refer to the discussion of s 36 – the limitation clause – above), it is obvious
that the constitutional drafters should have provided guidelines regarding the
interpretation of the Bill of Rights and interpretation under the Bill of Rights. We
find such guidance in section 39 of the Bill of Rights.
Section 39(1) of the Constitution states:

(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.
Section 233 of the 1996 Constitution (Ch 14 – ‘‘General Provisions’’) stipulates

that every court, when interpreting any legislation, must prefer any reasonable
interpretation of the legislation that is consistent with international law over
any alternative interpretation that is inconsistent with international law. (Refer
back to study unit 3, where we discussed the role of international law in
environmental matters, to refresh your memory.)
Furthermore, section 39(2) stipulates: ‘‘When interpreting any legislation, and

when developing the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of Rights.’’
Subsection (3) stipulates: ‘‘The Bill of Rights does not deny the existence of
any other rights or freedoms that are recognised or conferred by common law,
customary law or legislation, to the extent that they are consistent with the
Bill.’’
In BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation,

Environment and Land Affairs 2004 5 SA 124 (W) at page 141 (paras E and
H) the court noted that the Constitutional Court has repeatedly emphasised
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that constitutional rights must be generously interpreted, that all statutes must
be interpreted through the prism of the Bill of Rights and that all law-making
authority must be exercised in line with the Constitution.
The Constitution lays down certain principles for the

interpretation of the Bill of Rights. Read section 39 of the
Activity 9 Constitution and make a summary of its provisions.

Complete this activity – the answer is provided in the preceding section and is self-
explanatory.
4.3 Other fundamental rights that have an impact

on the management/administration and
control of environmental matters
4.3.1 Introduction
Can you think of other fundamental rights that have an impact on
environmental matters?
Although the environmental right is obviously the most pertinent and relevant
right in the protection and management/administration of the environment,
other rights also have an impact on this activity. In other words, other rights in
the Bill of Rights are directly relevant to the environment and environmental
management (Kidd 2011:26). Van der Linde and Basson (2010 CLOSA 50–41)
have a somewhat narrow view of these rights when they refer to them as rights
‘‘that regularly feature in environmental disputes’’. In their discussion of these
rights, they distinguish between ‘‘substantive rights’’ (at 50–42 and further)
and ‘‘procedural rights’’ (at 50–46 and further). The substantive rights they
discuss are the equality right (s 9); the right to dignity (s 10); the right to life (s
11); the right to property (s 25); and the socio-economic rights as found in
section 26 (the right of access to housing); and the right of access to ‘‘health
care services’’ (s 27(1)(a)), sufficient food and water (s 27(1)(b)) and ‘‘social
security’’ (s 27(1)(c)).
As regards the relationship between the environmental right and the right to
food and water, Van der Linde and Basson write the following (at 50–45):
Two rights contained in FC [the Final Constitution – the 1996 Constitution] s

27 stand in some tension with the environmental rights in FC s 24: the rights
to food and water. Subsistence fishing and hunting often have a negative
impact on the conservation of sensitive ecosystems. Agricultural practices –
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say the use of natural aquifers to increase production – may have an adverse
effect on sound environmental management. Moreover, the state’s dual
obligations to manage the natural environment and to provide the conditions
for adequate production of food products can come into conflict. At the same
time, the right to access to water may work, hand in glove, with the right to
healthy environment. Access to water implies drinking water free from toxic
contaminants, which will require keeping watercourses and the surrounding
environment free of pollution.
Van der Linde and Basson identify the right of access to information (s 32) and
the right to just administrative action (s 33) as ‘‘procedural rights’’. They
explain:
Procedural rights provide a mechanism for gathering information that might
affect those concerned with a potential environmental dispute and in
adopting reaction strategies to check the reasonableness of government
decisions (at 50–46).
Although not a ‘‘procedural right’’ as such, we include in this discussion of

procedural rights the right of access to the courts (s 34), since it deals with
matters pertaining to environmental disputes and their solution via the judicial
system – and therefore through the use of a constitutional right.
4.3.2 The right to just administrative action and the

environment
4.3.2.1 General remarks
Administrative law is an important component of environmental law and is
extremely valuable in the practical application and development of this field.
Glazewski expresses this reality by stating that ‘‘in a sense, environmental law
can be described as administrative law in action, because environmental
conflicts frequently turn on the exercise of administrative decision-making
powers’’ (2005:86).
When administrators (administrative officials or organs of state) exercise their

discretionary powers and take any decisions, such decisions may have a
direct or indirect negative or positive influence on the environment. For
example, a decision to build a dam in terms of the new National Water Act of
1998 may have direct implications for a riverine system, or the authorisation of
mining activities in terms of the Mineral and Petroleum Resources
Development Act of 2002 may indirectly cause several forms of pollution. In
administrative law we find the requirements for valid (just) decision-making by
administrators/organs of state. The requirements are that the decisions must
be lawful, reasonable and procedurally fair and that administrators have to
provide written reasons for their decisions. These requirements are now
recognised in the Bill of Rights as enforceable rights of individuals and groups
of people against the state as their rights to just administrative action (s 33 of
the Bill of Rights).
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These rights serve yet another purpose since they act as control measures
over the discretionary powers of administrators/organs of state. These forms
of administrative control highlight the philosophy of democratic decision-
making in environmental law. The essential aim of environmental planning is,
after all, to ensure that environmental factors are taken into account in
decisions regarding development. The truth, therefore, is that effective
environmental management and protection cannot be achieved without
administrative law provisions, such as procedural fairness and reasonable-
ness, public participation in decision-making and other complementary
mechanisms, such as the IEM (‘‘integrated environmental management’’)
procedures provided for by NEMA and public access to information.
PLEASE NOTE: It is not our intention (and neither is it the place) to

provide you with a comprehensive overview of the
characteristics of administrative law generally, nor of the
Promotion of Administrative Justice Act 3 of 2000
(PAJA), in particular, which codified South African
administrative law. What follows is just a brief summary
of those facets of administrative law that will be
particularly useful in your understanding of our discus-
sion of environmental compliance and enforcement in
the following study units. The summary begins with a
concise explanation of the concept ‘‘administrative
action’’, as defined in PAJA.
(For more detail on the elements of ‘‘administrative
action’’ and/or the features of administrative law in
general, refer to your Administrative Law study guide or
any standard administrative law textbook.)
4.3.2.2 Public administration

Before we examine the elements of ‘‘administrative action’’ in general and the
content of the right to just administrative action, we need to draw your
attention to Chapter 10 of the 1996 Constitution, entitled ‘‘Public
Administration’’. We cannot discuss the administration of environmental
affairs without referring to section 195, which deals with the basic values and
principles governing public (including environmental) administration.
In terms of section 195, public administration must be governed by the

democratic values and principles enshrined in the Constitution. This includes,
inter alia, the following principles: the efficient, economic and effective use of
resources must be promoted; public administration must be development-
oriented; services must be provided impartially, fairly, equitably and without
bias; people’s needs must be responded to and the public must be
encouraged to participate in policy-making; public administration must be
accountable; and transparency must be fostered by providing the public with
timely, accessible and accurate information (subs (1)).
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These principles apply to administration in all spheres of government, organs
of state and public enterprises (subs (2)).
4.3.2.3 The Promotion of Administrative Justice Act 3 of 2000 (PAJA)

Section 33 of the Constitution reads as follows:
Just administrative action
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by adminis-
trative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and
must –
(a) provide for the review of administrative action by a court or
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
Section 33 is a fundamental right enshrined in the Bill of Rights, and the state
and all organs of state must respect, protect, promote and fulfil the rights in
the Bill of Rights (s 2). The Bill of Rights applies to all law and binds the
legislature, the executive, the judiciary and all organs of state (ss 7(2) and 8
(1)). Section 32 (access to information) and section 34 (access to the courts)
also form part of the process to ensure just administrative action.
PAJA gives effect to section 33 and constitutes the ‘‘national legislation’’

referred to in section 33(3). It supplies more information on what constitutes
administrative action (in s 1 – the ‘‘Definitions’’); the procedure to follow to
ensure that any procedure in the administrative process is indeed ‘‘fair’’ (in ss
3 and 4); the process for an aggrieved person to follow to request written
reasons for administrative action (s 5); grounds of review of administrative
action (s 6); and the orders a court may make should the court find in favour of
the aggrieved person (s 8).
In essence, PAJA is a ‘‘prescriptive statute: it prescribes a specific code of

conduct which must be adhered to by all administrators in the exercise of their
powers, duties and functions. The purpose of this Act is to ensure the legality
of all administrative action’’ (Burns & Kidd 2009:229).
Administrative action
It is of prime importance to know what constitutes ‘‘administrative action’’. The
main reason for knowing what the concept entails is that the application of the
right to just administrative action (s 33 of the Constitution) depends on
whether ‘‘administrative action’’ has been performed by either an organ of
state or any person exercising public power/performing a public function in
104
terms of legislation. Put differently, administrative action is the entrance –
literally the doorstep or threshold – requirement for the application of the right
to just administration action.
In section 1 (‘‘Definitions’’), ‘‘administrative action’’ is defined as follows:

‘administrative action’ means any decision taken, or any failure to take a
decision by –
(a) an organ of state, when –
ii(i) exercising a power in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public functions in
terms of any legislation; or
(b) a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms of
an empowering provision,
which adversely affects the rights of any person and which has a direct,
external legal effect, but does not include ... (the exclusions, from (aa)
through to (ii ));
Other definitions in the section (s 1) should be read together with the definition
of ‘‘administrative action’’ since they elaborate on certain key concepts used
in the definition. They are:
. ‘[A]dministrator’ means an organ of state or any natural or juristic person
taking administrative action ...’’.
. ‘[D]ecision’ means any decision of an administrative nature made,
proposed to be made, or required to be made, as the case may be, under
an empowering provision, including a decision relating to –
(a) making, suspending, revoking or refusing to make an order, award or
determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority
or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative
nature, and a reference to a failure to take a decision must be
construed accordingly;
. ‘‘organ of state’’ bears the meaning assigned to it in section 239 of the

Constitution.
In terms of section 239 of the Constitution, ‘‘organ of state’’ means
105
(a) any department of state or administration in the national, provincial
or local sphere of government; or
(b) any other functionary or institution
i(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation, but does not include a court or judicial
officer
In the field of environmental law, it may be said that any action by an

environmental administrator as an organ of state in relation to the
implementation of legislation (such as implementing provisions of NEMA) or
the execution of policy will amount to ‘‘administrative action’’.
In performing such administrative action, the administrator has to act justly

(or, keeping the title of PAJA in mind, ‘‘administrative justice’’ has to be in
evidence). This is the manner in which any administrative action must be
performed by the organ of state or natural or juristic person in exercising state
authority. The Constitution imposes a duty on all administrators exercising
public power to act lawfully and reasonably, to follow fair procedures, and to
give written reasons when the rights of any person in the subordinate position
are adversely affected.
The question you need to answer, having established that administrative

action was taken by an organ of state or natural or juristic person, is whether
such action complied with the requirements for just administrative action as
set out in the Constitution, PAJA and the common law. In other words, you
need to examine whether the action was lawful, reasonable and procedurally
fair, as well as whether written reasons were provided for the action.
Lawful
This is an overarching principle, indicating to act in terms of the law. This
means that the administrator is required to comply with the prescripts of the
Constitution, other applicable legislation (such as NEMA, the empowering
legislation and PAJA -the ‘‘prescriptive’’ Act) and other sources of law.
Fair in terms of the procedures that were followed

This means that the provisions of sections 3 and 4 of PAJA must be applied
(These provisions largely constitute a codification of the common-law rules of
natural justice encapsulated in the audi alteram partem rule (‘‘to hear the other
side’’) and its sub-rules and the rule against bias (nemo iudex in sua propria
causa ) – ‘‘no one may be a judge in his or her own cause’’.)
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Discuss lawfulness and procedural fairness as important
‘‘tools’’ in protecting the environmental right. Would you say
Activity 10 that these procedural requirements (as found in the right to
just administrative action) have strengthened (or supported)
the right to the environment? How?

HINT: Study our comments first and then concentrate on the application of these
principles in solving environmental cases. Note, further, that these rules/
principles dealing with just administrative action (the right of an individual to
just administrative action) particularly relate to the actions/acts of the
environmental management inspectors (EMIs) or any other organ of state in
executing and/or managing the prescripts of NEMA. The EMIs are required to
act in compliance with the provisions of both PAJA and NEMA when they
perform their functions/duties or exercise their powers. These officials must
give the other party an opportunity to state his or her case and must be
unbiased when making decisions. This ensures that informed and objective
decisions regarding environmental matters are made. For example, think
about the complaints regarding the intended road construction (the topic of
the newspaper report reproduced right at the beginning of the study guide).
Should the officials simply ignore the complaints or should there be a way of
listening to the complaints via the provisions of PAJA (which give effect to the
right to just administrative action)? You will be better able to answer this
question once you have studied the study unit dealing with the EMIs and their
functions.
Reasonable
This usually relates to a decision that involves the exercise of a discretionary
power (e.g. whether the discretion was exercised reasonably). A reasonable
decision is a rational decision, is not taken arbitrarily and does not have an
unreasonable effect. In short, a reasonable decision is one in which we see
proportionality between the means or method used to achieve a particular
result or end.
Written reasons
Furthermore, where rights have been adversely affected by the administrative
action, written reasons must be given for the action – as required by section
33(2) of the Constitution and elaborated upon by section 5 of PAJA. Written
reasons must be given after the decision has been taken.
Section 5(1) reads as follows:

(1) Any person whose rights have been materially and adversely affected
107
by administrative action and who has not been given reasons for the
action may, within 90 days after the date on which that person became
aware of the action or might reasonably have been expected to have
become aware of the action, request that the administrator concerned
furnish written reasons for the action.
The procedures for obtaining written reasons, as well as the circumstances

where reasons need not be furnished by the administrator concerned, are set
out in subsections (2) to (4).
Reasons must justify the decision and must therefore be appropriate and
adequate. Years ago, Baxter (1984:228) wrote the following about the
importance of giving reasons in administrative decision-making:
In the first place, a duty to give reasons entails a duty to rationalise the
decision. Reasons therefore help to structure the exercise of discretion, and
the necessity of explaining why a decision is reached requires one to address
one’s mind to the decisional referents which ought to be taken into account.
Secondly, furnishing reasons satisfies an important desire on the part of the
affected individual to know why a decision was reached. This is not only
fair: it is also conducive to public confidence in the administrative decision-
making process. Thirdly – and probably a major reason for the reluctance to
give reasons – rational criticism of a decision may only be made when the
reasons for it are known. This subjects the administration to public scrutiny
and it also provides an important basis for appeal or review. Finally, reasons
may serve as a genuine educative purpose, for example where an applicant
has been refused on grounds which he is able to correct for the purpose of
future applications.
Discuss the furnishing of reasons as an important ‘‘tool’’ in

protecting the environmental right.
Activity 11

Read the above excerpt from Baxter’s book and make a summary of his comments.
You have to include the following, followed by a brief explanation:
. A duty to give reasons entails a duty to rationalise the decision.
. The affected individual must know why a decision was reached.
. Rational criticism of a decision may only be made when the reasons for it are
known.
. Reasons may serve a genuine educative purpose.
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Control of administrative action
In performing administrative action, the administrator in the environmental
sphere must act in a lawful, reasonable and procedurally fair manner. In other
words, he or she must act in compliance with his or her constitutional
obligations.
Can you think of any solution in instances where an official acts unlawfully or
unreasonably?
PAJA provides for the judicial review of administrative action in the event that
the administrator does not comply with his or her constitutional obligations. In
section 6, entitled ‘‘Judicial review of administrative action’’, the grounds of
review are set out. The grounds of judicial review of administrative action are
now mainly codified in the Act and cover a wide range of grounds relating to
decision-making and the authority of the decision-maker (the administrator),
the decision itself and the impact of the decision. The grounds of review of
administrative action include, inter alia, unauthorised action (e.g.
unauthorised delegation or bias); failure to comply with mandatory and
material procedures or conditions prescribed by the empowering provision;
procedurally unfair administrative action; unreasonable administrative action,
failure to take a decision; and unlawfulness in general. Note, though, that, as a
rule, the courts are reluctant to interfere in the functioning of the public
administration or the application of public policy because of the operation of
the separation of powers doctrine.
Section 7 of PAJA deals with the procedure for judicial review and the general
rule is that internal (domestic) remedies must be exhausted before the
aggrieved person approaches the court (refer to s 7(2)), but exceptions do
exist (e.g. in the case of a mala fide administrator). The reason for the
exhaustion of internal remedies is that the public administration must be given
the opportunity to correct its own defective (invalid/unlawful) administrative
action. This forms part of day-to-day administration and is usually provided for
in legislation (e.g. s 43 of NEMA, entitled ‘‘Appeals’’).
Secondly, during internal administrative review by the higher authority (the

Minister/MEC), an alleged defective action is tested (i.e. reviewed fully) and
corrected (e.g. amended, set aside or withdrawn), and the aggrieved person
is presented with a remedy (e.g. reinstatement of a suspended permit or
payment of compensation). The administrator who acted unlawfully is usually
subjected to internal departmental forms of discipline.
Section 8 of PAJA relates to the remedies in proceedings for judicial review. In

other words, it specifies the remedies (‘‘the orders’’) the court may grant if the
administrative action – the decision – is found to be deficient. These orders
include prohibition, setting aside the administrative action, a declaration of
rights, granting an interdict and, in extreme cases, damages.
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What can you do if you feel aggrieved by a decision of an
environmental management official?
Activity 12
HINT: Once again, you have to think in terms of the functionaries (the EMIs) and/or
the Minister and the way in which they have to perform their functions/duties
and exercise their powers.
If you feel aggrieved by a decision taken by an organ of state (e.g. an environmental

management official), you can take the matter further in that department or
institution, thus exhausting internal remedies. Once all internal remedies have
been exhausted, you can take the matter on review on one of the grounds listed
above.
PLEASE NOTE: It is extremely important to keep this paragraph (4.3.2) in

mind when you begin working through study unit 7, in
which we discuss the measures and the institutions
involved in ensuring compliance with and enforcement
of environmental law.
4.3.3 The right of access to information and environmental

concerns
The right of access to information is closely linked with the right to just
administrative action, since ‘‘both are important safeguards in the
administrative system, and both do a great deal to encourage the
democratic values of participation and accountability’’ (Hoexter 2007:415).
In Aquafund (Pty) Ltd v Premier of the Western Cape 1997 7 BCLR 907 (C),
Traverso J held (at 916E):
If it is accepted that every person is entitled to lawful administrative action,
it must follow that in a ‘‘legal culture of accountability and transparency’’ ...
manifested in the Constitution, a person must be entitled to such information
as is reasonably required by him to determine whether his right to lawful
administrative action has been infringed or not. If a person is not able to
establish whether his rights have thus been infringed, he will clearly be
prejudiced.
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Section 32 of the Constitution contains the right of access to information. It
reads:
(1) Everyone has the right of access to –
(a) any information held by the state; and
(b) any information that is held by another person and that is
required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and
may provide for reasonable measures to alleviate the administrative
and financial burden on the state.
Glazewski states that the inclusion of a right of access to information in the Bill
of Rights is ‘‘in conformity with international law trends as well as regional and
national tendencies to foster accountable and participatory government
generally’’ (2005:94). He adds that ‘‘in the environmental context there have
similarly been calls to provide for a right to environmental information
specifically’’. He quotes Principle 10 of the Rio Declaration, which states:
Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall
have appropriate access to information concerning the environment that is
held by public authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage public
awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including
redress and remedy, shall be provided.
As required by section 32(2), the right of access to information has been given
effect by the Promotion of Access to Information Act 2 of 2000 (PAIA). In the
long title, the purpose of the Act is set out as follows:
To give effect to the constitutional 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 ...
Although PAIA makes no distinction between environmental and other

information, it does place a mandatory obligation on public bodies to
disclose ‘‘an imminent and serious public safety or environmental risk’’ in the
public interest (s 46(a)(ii)). Section 70(a)(ii) makes provision for a private body
to disclose ‘‘an imminent and serious public safety or environmental risk’’ in
the public interest.
Part 1 (‘‘Introductory provisions’’) of PAIA contains various definitions (s 1)

and defines ‘‘public safety or environmental risk’’ as
harm or risk to the environment or the public (including individuals in their

workplace) associated with –
(a) a product or service which is available to the public;
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(b) a substance released into the environment, including, but not limited
to, the workplace;
(c) a substance intended for human or animal consumption;
(d) a means of public transport; or
(e) an installation or manufacturing process or substance which is used in
that installation or process.
It is further noticeable that the Act does not refer to ‘‘information’’; instead, it
refers to access to the ‘‘record’’ of bodies. The term ‘‘record’’ is defined as
follows:
‘[R]ecord’ of, or in relation to, a public or private body, means any recorded
information –
(a) regardless of form or medium;

(b) in the possession or under the control of that public or private body,
respectively; and
(c) whether or not it was created by that public or private body,
respectively;
NEMA and access to environmental information

Later on in this study unit you will learn more about the environmental
principles of NEMA. These principles are contained in section 2 of NEMA.
Section 2(4)(k) of NEMA reads as follows: ‘‘Decisions must be taken in an
open and transparent manner, and access to information must be provided in
accordance with the law.’’
Woody Woodhill, an owner of a factory has allegedly been

exceeding emission levels, causing air pollution in the area.
Activity 13 Woody refuses to give you access to emission-level data.
13.1 What is the legal position on access to and disclosure of
information in such a case?
13.2. Would the situation be different if Woody Woodhill was
a manager of a state-owned factory? Please motivate
your answer.
HINT: It is obvious that you need to study the general discussion of the right of
access to information provided before you attempt to answer these two
questions.
13.1 Woody Woodhill, as owner of a factory, will have to disclose the information in
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terms of section 32(1)(b) of the Constitution. You will have to show that such
information is required for the exercise or protection of a right, for example
your right to an environment that is not harmful to your health.
13.2 Woody Woodhill, as manager of a state-owned factory, will have to disclose the
information in terms of section 32(1)(a) of the Constitution. In this instance you
do not have to rely on the exercise or protection of a right.
Also take note of the mandatory obligation on public bodies to disclose ‘‘an
imminent and serious public safety or environmental risk’’ in the public interest
(s 46(a)(ii)). Section 70(a)(ii) makes provision for a private body to disclose ‘‘an
imminent and serious public safety or environmental risk’’ in the public interest.
These provisions may also be applicable in both instances.
4.3.4 Access to courts and environmental concerns

Why, in your view, is it important to have the right to have an environmental
dispute resolved before a court or an independent tribunal?
Section 34 of the Constitution provides as follows:
Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.
Bear in mind that it is not only the courts that may hear legal disputes, but also
other independent and impartial tribunals or forums (fora). There are many
administrative bodies involved in exercising administrative control over
environmental disputes or uncertainties. These bodies include
. administrative control bodies within a departmental hierarchy (eg the head

of department, director and Minister)
. more independent (usually statutory) administrative control bodies, which
resolve actions in their own name (e.g. the Development Facilitation
Tribunals)
. semi-state and private bodies, which exercise administrative control within
their own hierarchies (e.g. the executive boards of NGOs and
environmental organisations, and disciplinary committees of clubs and
organisations)
. statutory bodies instituted in terms of the Constitution (e.g. the Public
Protector (s 182) and the Human Rights Commission (s 184))
NOTE: Administrative control is discussed in detail in Theme III, which

covers environmental compliance and enforcement.
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Judicial control of environmental disputes takes place within the judicial
system, which consists of
. the Constitutional Court (s 167)
. the Supreme Court of Appeal (s 168)
. the High Courts (s 169)
. the magistrates’ courts (s 170)
. other courts recognised in terms of an Act of Parliament
PLEASE NOTE: Read the sections on courts and their functions in the
Constitution.
Judicial control will be discussed in more detail in
Theme III, which covers environmental compliance and
enforcement.
Why is it important to have the right to have a dispute resolved

before a court or an independent tribunal?
Activity 14

Having worked through the preceding sections of this study unit you have learned
about a number of rights that have an impact on the right to the environment. These
rights include, amongst others, the right to just administrative action, which provides
that all actions, including decisions on environmental matters by officials in the
administration, must comply with certain constitutional standards. If their conduct
does not comply with these standards, their conduct is subject to administrative and
judicial control. Similarly, you have the right to have a dispute resolved before a
court or an independent tribunal if you are denied access to information. Lastly, refer
back to Principle 10 of the Rio Declaration (above under the discussion of access to
information). This principle requires, amongst others, effective access to judicial
and administrative proceedings, including redress and remedy in environmental
issues.
4.4 The National Environmental Management Act 107

of 1998 (NEMA): the Act’s function as framework
legislation and the principles it contains
4.4.1 NEMA as framework legislation
When we discussed the right of access to information and the right to just
administrative action above, we saw that the Constitution often requires that
legislation be adopted to add ‘‘flesh’’ to the bare bones of a particular
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provision in the Constitution. In other words, the Constitution requires
enabling legislation. Section 24 of the Constitution requires such enabling
legislation as well. The legislature adopted the necessary legislation in the
form of the National Environmental Management Act 107 of 1998 (NEMA),
which came into force on 29 January 1999 (Proc 8 of 1999).
In the following few paragraphs we will briefly touch on only two features of
NEMA: its character as framework legislation and the principles it contains.
Then, in the following study units, we will analyse the relevant provisions of
NEMA under specific headings, such as ‘‘Cooperative government and the
National Environmental Management Act 107 of 1998’’ in study unit 5.
NEMA may be characterised as a ‘‘framework’’ Act. Du Plessis and Nel

describe the purpose and function of framework legislation as follows
(2001:1–2):
Framework legislation aims to define overarching and generic principles in
terms of which sectoral-specific legislation is embedded, as well as to
enhance co-operative environmental governance amongst fragmented line
ministries. It furthermore provides general basic norms that may be used to
introduce new environmental legislation or to amend or maintain existing
legislation
They then proceed to identify and discuss the typical characteristics of such
framework legislation, namely
(a) ‘‘certain generic legal elements’’, which are the distinctive elements of
legislation we are all acquainted with, such as a preamble, a long title,
definitions, institutional arrangements, civil liability, offences and penalties
(2001:4, fn 13)
(b) ‘‘a flexible approach to address changing circumstances’’ – the authors
explain that such ‘‘flexibility’’ is achieved "by means of broad-based policy
principles, which in turn, are supported by separate, sectoral-specific
legal arrangements" (2001:4)
(c) ‘‘dedicated sectoral-specific legal arrangements’’ – they explain that
sectoral-specific legislative arrangements are ‘‘cascaded down from
sectoral-specific policy documents such as White Papers, policy
statements and discussion documents to sectoral-specific legislation
and regulations’’ (2001:4)
(d) ‘‘the inclusion of broad based environmental policy and principles’’
(2001:3)
According to these authors, framework legislation also attempts to ensure the

following (2001:3):
(a) popular broad-based participation during its formulation phase
(b) cooperative governance between all spheres and sectors of government
(c) the use of innovative integration of multiple environmental management
tools and instruments to benefit the environment.
The Preamble to the Act – which sets out the intention for NEMA to operate as
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framework legislation – states that it is desirable that the law develop ‘‘a
framework for integrating good environmental management into all
development activities’’.
Van der Linde and Basson (2010 CLOSA ) explain, basing their explanation on
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment
and Land Affairs 2004 5 SA 124 at 145–149, that NEMA thus ‘‘creates the
basic legal framework for the environmental rights guaranteed in s 24’’.
4.4.2 The environmental principles of NEMA

As you have noticed above, one of the characteristics of framework legislation
is that it includes broad-based environmental policy and principles. We do not
find any definition of policy in NEMA and ‘‘neither does it provide for the
formulation of environmental policy’’ (Du Plessis & Nel 2001:20). However, we
do find an extended list of principles in section 2 of the Act. These principles
are sourced from both international environmental law and the Constitution.
Glazewski’s remark that ‘‘the principles are detailed and complex and provide
limitless potential for decision-makers and the courts to develop a cohesive
body of generally acceptable environmental management practices’’
(2005:142) is an apt summary of the purpose of these principles.
In terms of section 2(1), all actions of organs of state that may significantly
affect the environment have to be in line with the principles set out in
subsections (2), (3) and (4). Section 2(1) states further that these principles
must: (a) apply alongside all other appropriate and relevant considerations;
(b) serve as the general framework for environmental plans; (c) serve as
guidelines by reference to which any organ of state must exercise any function
when taking a decision in terms of NEMA or any other Act concerning the
protection of the environment; (d) serve as principles by reference to which a
conciliator must act; and (e) ‘‘guide the interpretation, administration and
implementation of this Act, and any other law concerned with the protection or
management of the environment’’.
Section 2(2) provides 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.’’ Section
2(3) contains the principle dealing with sustainable development, and a
further eight factors relevant to sustainable development ((i)–(viii)) are set out
in section 2(4)(a). Section 2(4)(b) to 2(4)(r) contains further environmental
management principles.
Section 2(4)(a) reads as follows:
(4) (a) Sustainable development requires the consideration of all

relevant factors including 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;
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(iii) that the disturbance of landscapes and sites that constitute the
nation’s cultural heritage is avoided, or where it cannot be
altogether avoided, is minimised 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 responsible 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.
Section 2(4)(b)–(r) reads as follows:
(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 environment by
pursuing the selection of the best practicable environmental
option.
(c) Environmental justice must be pursued so that adverse environ-
mental 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 measures may be taken to
ensure access thereto by categories of persons disadvantaged by
unfair discrimination.
(e) Responsibility for the environmental health and safety conse-
quences 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 governance 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 interested and affected parties, and this includes recognis-
ing all forms of knowledge, including traditional and ordinary
knowledge.
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(h) Community wellbeing and empowerment must be promoted
through environmental education, the raising of environmental
awareness, the sharing of knowledge and experience and other
appropriate means.
(i) The social, economic and environmental impacts of activities,
including disadvantages 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 environment 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 information must be provided in accordance with the
law.
(l) There must be intergovernmental co-ordination and harmonisa-
tion of policies, legislation and actions relating to the environ-
ment.
(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 environ-
ment must be discharged in the national interest.
(o) 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.
(p) The costs of remedying pollution, environmental degradation and
consequent adverse health effects and of preventing, controlling
or minimising further pollution, 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 development 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 management and planning proce-
dures, especially where they are subject to significant human
resource usage and development pressure.
Read section 2(2)–(4) of NEMA very carefully and then

consider the following questions:
Activity 15 15.1 Which principle do you think ‘‘goes to the heart of
environmental management’’?
15.2 In earlier study units you were introduced to principles
such as ‘‘the polluter pays’’ principle, the precautionary
principle and the preventive principle. List the
principles you encountered in the earlier study units
and then, next to these principles, write their
equivalents, as enumerated in subsection (4)(a)–(r).
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15.3 Write down the principles that are peculiar to South
Africa in that they reflect the necessity to redress the
country’s undemocratic past.

HINT: You need to go back to the earlier study units to refresh your memory on the
international environmental principles found in conventions and in ‘‘soft law’’.
(Pay particular attention to what was said about sustainable development.)
You then need to study section 2 very carefully to familiarise yourself with its
provisions.
A FURTHER HINT: Note that some of the ‘‘principles’’ do not fit easily into the
categories of environmental principles you encountered in earlier study units.
The reason for this is that some of the ‘‘principles’’ relate to the administration
of NEMA (that is, in line with the provisions of s 195 of the Constitution, the
principles ‘‘prescribe’’ how officials should act in performing their functions
or executing their powers. In other words, the principles serve as
‘‘guidelines’’ in terms of which any organ of state must exercise any
function or take any decision pertaining to the environment.)
15.1 Sustainable development (considered to be the founding principle of

environmental law): sections 2(3) and (4)(a)
15.2 The polluter pays principle, section 2(4)(p); the precautionary principle,
section 2(4)(a)(vii); the preventive principle, section 2(4)(a)(viii); duty of care
to avoid harm to the environment, section 2(4)(a)((i)–(iv); environmental
justice, section 2(4)(c); life cycle responsibility, section 2(4)(e); and the public
trust doctrine, section 2(4)(o)
15.3 Environmental justice, section 2(4)(c); and equitable access, section 2(4)(d):
‘‘Equitable access to environmental resources, benefits and services to meet
basic human needs and ensure human well-being must be pursued and
special measures may be taken to ensure access thereto by categories of
persons disadvantaged by unfair discrimination.’’

With this brief discussion of the principles of NEMA, we have come to the end
of this long study unit dealing with various aspects of the Bill of Rights as they
relate to the environment. The individual or group involved in an environmental
dispute against the state (environmental administration) will, where necessary,
be entitled to protection in terms of the relevant provisions.
119
You will also realise how important these provisions are in ensuring that
environmental affairs are administered lawfully and fairly.
In the next study unit we continue with our discussion of the Constitution and
the environment. Our discussion will concentrate on Chapter 3 of the
Constitution, under the heading ‘‘Cooperative government in environmental
management’’, and the provisions of Chapter 3 of NEMA, entitled
‘‘Procedures for co-operative governance’’. In the discussion we will also
examine the division of environmental matters among the three spheres of
government – national, provincial and local.
SELF-ASSESSMENT QUESTIONS
1. List the general characteristics of the Constitution. (6)
2. What are the objectives and the purpose of the Constitution? (4)
3. Why is an environmental right important? (3)
4. Discuss section 24(a) of the Constitution. (10)
5. Discuss section 24(b) of the Constitution. (20)
6. Which section of the Constitution provides for the limitation of a
fundamental right? (1)
7. Discuss the limitation of the environmental right. (10)
8. Distinguish between locus standi as provided for in section 38 of
the Constitution and locus standi as provided for in section 32 of
NEMA. (6)
9. Set out the provisions of section 39 of the Bill of Rights that deal
with the interpretation of the Bill of Rights. (5)
10. Explain what the constitutional right to just administrative action
entails. (5)
11. Discuss control of administrative action. (10)
12. Why is it important to have access to environmental information? (4)
13. Write a note on the environmental principles contained in section 2
of NEMA. (15)
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STUDY UNIT
5
Cooperative government in environmental
management
OVERVIEW
In this study unit we provide a brief exposition of the structure of the state and the division of
powers and functions among the three spheres of government and the various departments
within each sphere. This exposition is necessary to help you understand the complexity
of our government system and how it affects environmental law and the way in which the
environment is managed (environmental management). The structure of the state and the
division of powers and functions affect the management of the environment directly since
environmental matters are not only divided among the three spheres of government, but
are also spread across different departments within each sphere of government.
Constitutional provisions aimed at overcoming the complexity of our system of government
are examined to shed light on how state powers and functions must be exercised to
reconcile differences and overlapping powers and functions. These provisions include
conflict resolution, cooperative government and intergovernmental relations. Lastly, we look
at the provisions of NEMA in this context, that is, its role as framework legislation and its
purpose of providing for cooperative environmental governance.
By the end of this study unit, you should be able to:
& discuss the impact of the constitutional structure of the state and the division of
state authority on environmental management
& analyse the obligations in the functioning of the spheres of government, as
entrenched in Chapter 3 of the Constitution
& evaluate if NEMA fulfils its purpose to bring about cooperative environmental
governance
5.1 Introduction
The 1996 Constitution has been in operation since 4 February 1997. To
understand the impact of the new dispensation on environmental law and the
way we manage our environment-related activities by means of an
environmental management system, we have to examine the South African
constitutional order. In study unit 4 you learnt that the Constitution is the
supreme law of our country and has evolved through a democratic process of
negotiation in which most South Africans were represented. It is a value-laden
121
and value-driven document and all other laws must be interpreted in terms of
the values, spirit and purport of the Constitution and its Bill of Rights. All other
legislation (parliamentary legislation included) is subordinate to the
Constitution and may be declared invalid or null and void by a court of law
(e.g. by the Constitutional Court) if it conflicts with the Constitution.
Furthermore, the Constitution sets out the structure of the state and the
organs of state. The Constitution provides for the organisation of the state,
and determines the powers and the functions of its functionaries and how
these powers and functions must be exercised. The organisation of the state
is of particular relevance to environmental law and environmental
management since it determines how powers and functions aimed at
regulating environmental affairs are distributed among the various spheres
of government and its departments.
5.1.1 The structure of the South African government and the

distribution of authority
STATE AUTHORITY
"
"
"
LEGISLATIVE EXECUTIVE JUDICIAL

AUTHORITY AUTHORITY AUTHORITY
NOTE: Since you are in your fourth year of study and have completed the
Constitutional Law module, we assume that you are familiar with
the structure of the South African government, the distribution of
state authority, and so on. We will therefore include only a brief
discussion of the topic to emphasise how this structure affects
environmental law and environmental management.
According to the doctrine of the separation of powers, the separation of

powers is the division of state authority into legislative, executive and judicial
powers, which powers are performed by separate branches of government.
You will recall that the legislative authority is the power that creates,
amends and repeals laws; the executive authority is the power that executes
and enforces laws; and the judicial authority is the power that interprets laws
and applies legal rules to real-life situations.
The Constitution further provides for national, provincial and local spheres of
government. The South African system of government entails the
decentralisation of legislative and executive powers in each sphere of
government. The distribution of state authority among the spheres ensures
the fair allocation of powers and functions to minimise the overconcentration
of state authority in one sphere, forexample the national government. The
topic under discussion deals with cooperative government, which is
applicable to the legislative and executive authority of government.
122
NOTE: Do not confuse the separation of powers with the constitutional
provision for cooperative government, as provided for in Chapter
3 of the Constitution.
5.1.2 National government

NATIONAL SPHERE
"
"
LEGISLATIVE AUTHORITY EXECUTIVE AUTHORITY

"
"
PARLIAMENT PRESIDENT & CABINET
(National Assembly & National (President, Deputy President &
Council of Provinces) Ministers)
"
VARIOUS DEPARTMENTS
5.1.2.1 National legislative authority

The national legislative authority of the Republic vests in Parliament. In
terms of section 42 of the Constitution, Parliament consists of the National
Assembly and the National Council of Provinces (NCOP). The NCOP functions
at the national sphere of government and as the second chamber of
Parliament. The NCOP (ss 60–72) is essentially a ‘‘watchdog’’, ensuring that
provincial interests are taken into account al national level. The NCOP forms
part of the national legislative authority and has specific powers to participate
in the legislative process, particularly where Schedule 4 and 5 legislation is
concerned.
Parliament enjoys exclusive powers to make laws in respect of those areas

that have been expressly given to it by the various provisions of the
Constitution. For example, section 33(3), which is the just administrative
action provision, clearly provides that national legislation must be enacted to
give effect to the right to just administrative action. Parliament has residual
legislative capacity to make laws relating to those areas that are not
enumerated in the Constitution or mentioned in Schedules 4 and 5 of the
Constitution.
In Maccsand v City of Cape Town 2011 6 SA 633 (SCA), the question arose as
to whether exclusive national legislative competences exist and, if so, how
these competences are identified. The court applied the approach followed in
Ex Parte President of the Republic of South Africa: In Re Constitutionality of the
Liquor Bill 2001 1 SA 732 (CC) and found that the regulation of mining is an
exclusive national legislative competence. Some of the factors that were
considered are: (a) mining is not mentioned in either Schedule 4 or 5 and will,
123
by ‘‘converse inference’’, fall under the residual power of national government
to pass legislation with regard to any matter (s 44(l)(a)(ii)); (b) the Mineral and
Petroleum Resources Development Act 28 of 2002 (MPRDA) vests its
administration within the national executive sphere of government; and (c)
the ‘‘national character’’ of the MPRDA.
In keeping with this approach, the national legislative authority has exclusive
competence to make laws governing the following environmental matters:
national parks, national botanical gardens and marine resources (excluded in
Schedule 4 (Part A)). Considering that the national government’s role is to
maintain national standards in important policy domains (their national
character) and its residual powers, the national legislative authority has
exclusive competence to make laws governing land, agriculture, certain
environmental matters, fresh water resources and mining.
Schedule 4 deals with functional areas of concurrent (or shared) national and
provincial legislative compet ence (discussed under provincial government
below).
5.1.2.2 National executive authority

In terms of section 85 of the Constitution, the national executive authority
vests in the President. The President, together with the Cabinet (the President,
the Deputy President and Ministers), must implement national legislation and
policy, coordinate the functions of the state departments and administration,
and initiate legislation.
The national departments listed in Schedules 1 and 2 of NEMA are considered

to exercise functions that may affect the environment or that involve the
management of the environment. These departments are Environmental
Affairs, Tourism, Rural Development and Land Reform, Agriculture, Forestry
and Fisheries, Human Settlements, Trade and Industry, Transport, Water
Affairs, Public Enterprises, Public Works, Defence, Mineral Resources, Energy,
Health, and Labour. Further departments are identified as playing a role in
environmental management, namely, Provincial and Local Government,
Science and Technology, and Foreign Affairs (Du Plessis in Paterson &
Kotze (eds) 2009:31).
Evidently a large number of national departments play a role in environmental

management and this inevitably influences the provision of a coherent and
integrated environmental management system. The fragmentation of
environmental management across various departments (also referred to as
horizontal fragmentation), each dealing with a component of the
environment, for example land, forests, agriculture, minerals and energy,
increases the risk of environmental policies being implemented in a
fragmented way.
For exampIe: The Minister responsible for environmental matters may

designate as an environmental management inspector, any staff member of
the Department responsible for environmental affairs or any other organ of
state (s 31 B). However, provision is also made for the designation of any staff
124
member of the Department of Water Affairs and Forestry as an
environmental management inspector by the Minister responsible for
water affairs (s 31 BA). Provision is furthermore made for the designation of
environmental mineral resource inspectors by the Minister responsible
for mineral resources. The Minister responsible for mineral resources may
designate as an environmental mineral resource inspector, any staff member
of the Department of Mineral Resources (s 3 IBB). All these officials are tasked
with monitoring compliance with NEMA, and enforcing NEMA and specific
environmental legislation. You will learn more about environmental
management inspectors in study unit 7.
Further examples: The mining industry is regulated by the MPRDA, which is

administered by the Department of Mineral Resources; forestry is regulated by
the National Forests Act 84 of 1998 (which contains provisions on the
protection of listed indigenous trees) and the National Veld and Forest Fire Act
101 of 1998 and is administered by the new Department of Forestry and
Fisheries. This fragmentation may undermine an integrated approach to
environmental management and the effectiveness of environmental
management in general.
Do you think that the structure of national government and

the division of its powers have an impact on environmental
Activity 1 management?

. Page back to study unit I, read the definition of ‘‘environment’’ and identify the
different components of the concept ‘‘environment’’.
. Make a list of the national departments listed in Schedules I and 2 of NEMA that
exercise functions that may affect the environment or that involve the
. Page back to study unit 2 and make a list of the environmental legislation
discussed under the topic of parliamentary legislation.
Having identified the components of the ‘‘environment’’, it becomes apparent that

environmental management is divided among more than one national department.
To the list of the environmental legislation discussed under the topic of parliamentary
legislation, you can add other parliamentary legislation such as the Mineral and
Petroleum Resources Development Act and the National Heritage Resources Act.
These Acts not only deal with specific components of the environment, but are also
spread across and administered by several national departments. Such
fragmentation must inevitably affect an integrated approach to environmental
management.
125
5.1.3 Provincial government
PROVINCIAL SPHERE
"
"
"
"
PROVINCIAL LEGISLATURE PREMIER & EXECUTIVE COUNCIL
(Premier & MECs)
"
VARIOUS DEPARTMENTS
The legislative authority of a province is vested in its provincial legislature,

which may, inter alia, pass legislation in and for the province with regard to
. any matter within a functional area listed in Schedule 4 (Part A) (functional

areas of concurrent national and provincial legislative competence),
including matters such as the administration of indigenous forests, the
environment, nature conservation (excluding national parks, national
botanical gardens and marine resources), pollution control, population
development, regional planning and development, soil conservation and
urban and rural development. This means that both these spheres of
government can make laws and implement laws that regulate these
environmental matters.
. any matter within a functional area listed in Schedule 5 (Part A) (functional
areas of exclusive provincial legislative competence). Schedule 5
(Part A) deals with functional areas that fall under exclusive provincial
legislative competence, such as provincial planning. National government
does not have legislative competence over any matter so listed. Provincial
planning is accordingly regulated by provincial legislation and
administered by provincial authorities.
. any matter outside those functional areas that is expressly assigned to the
province by national legislation.
The provincial legislature may also assign any of its legislative powers to a
municipal council in that province.
In the provincial sphere, the premiers, appointed provincial ministers and

provincial departments fulfil the executive functions of the executive branch of
government. This entails implementation of legislation, the development of
policy and the coordination of the provincial state departments and
administrations.
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Make a list of functional areas of concurrent national and
provincial legislative competence that deals with
Activity 2 environmental matters. What do you think is the implication of
this for environmental management?

Concurrent national and provincial legislative competence: the administration of
indigenous forests, the environment, nature conservation (excluding national parks,
national botanical gardens and marine resources), pollution control, population
development, regional planning and development, soil conservation and urban and
rural development. This means that both these spheres of government can make
laws and implement laws that regulate these environmental matters.
Go back to the previous activity where you learnt that environmental matters are
spread across several national departments. The implication of concurrent national
and provincial legislative competence is that environmental matters are also divided
between the national and provincial spheres of government, which indicates that
these spheres of government must coordinate their functions to ensure alignment of
laws.
5.1.4 Local government

LOCAL SPHERE
"
"

"
"
MUNICIPAL COUNCILS MUNICIPALITIES

"
VARIOUS DEPARTMENTS
Section 151(1) of the Constitution determines that the local sphere of

government consists of municipalities, which must be established for the
whole country. A municipality has the right to govern, on its own initiative, the
local affairs of its community, subject to national and provincial legislation, as
provided for in the Constitution (subs (3)). National and provincial government
may not compromise or impede a municipality’s ability or right to exercise its
powers or perform its functions (subs (4)). In short, section 151 deals with the
‘‘status of municipalities’’.
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Section 156 deals with the powers and functions of municipalities, including
executive authority in respect of and the right to administer the local
government matters listed in Part B of Schedules 4 and 5, and any other
matter assigned or delegated to it by national or provincial legislation. A
municipality’s authority to administer local government matters listed in Part B
of Schedules 4 and 5 means that a municipality may make and administer by-
laws in this regard (s 156(2)). National and provincial governments must
assign or delegate to a municipality, by agreement and subject to conditions,
the administration of a matter listed in Part A of Schedules 4 and 5 (strictly
speaking, these are not local matters) if the matter would
. most effectively be administered locally and
. the municipality has the capacity to administer it (subs (4))
In terms of Schedule 4 (Part B), the national and provincial government have
concurrent legislative powers over certain local government matters to the
extent set out in section 155(6)(a) and (7). Similarly, in terms of Part B of
Schedule 5, the provincial legislature has exclusive powers over local
government matters, subject to section 155(6)(a) and (7). In essence, this
means that the provincial governments’ (and in specific cases, also the
national government’s) legislative and executive powers extend only to
monitoring and overseeing the performance of municipalities’ functions in
respect of Schedules 4 and 5 (Part B) matters. Schedule 4 (Part B) matters
include building regulations, air pollution, municipal planning, water and
sanitation services limited to potable water supply systems and domestic
waste-water and sewage disposal systems. Schedule 5 (Part B) matters
include the control of noise pollution, refuse removal, refuse dumps and solid
waste disposal. Local government therefore has legislative competence over
Schedule 4 and 5 (Part B) matters, which include a number of environmental
matters.
You have learnt that the Constitution distributes legislative and executive
competence over environmental matters among all three spheres of
government. The distribution of environmental matters among the spheres
of government is referred to as vertical fragmentation. This distribution of
legislative competence among the three spheres of government has certain
consequences for environmental management, such as ‘‘the potential to
cause fragmentation, overlap, duplication and conflict’’ (Craigie et al in
Paterson & Kotze (eds) 2009:68).
Draw a diagram to summarise the distribution of legislative

competence among the three spheres of government.
Activity 3

HINT: Page back to the relevant sections to refresh your memory and complete the
following diagram:
128
Legislative competence of the three spheres of government
Exclusive national Concurrent national Exclusive provincial Local government Local government
competence & provincial compe- competence (national & provincial (provincial government
tence government monitor & monitor & oversee)
oversee)
"
"
"
"
"
5.1.5 Interpretation by the courts of the competences of
the three spheres of government
The above discussion on the exclusive and concurrent competences of the
three spheres of government may have left you confused or uncertain
regarding the ambit, meaning, interpretation and practical application of these
provisions. Don’t despair: as is evident from the following cases, similar
confusion exists not only in the private sector, but also within the various
spheres of government and the departments themselves. We will therefore
discuss a few cases to further illustrate how the courts have interpreted the
competences of the three spheres of government.
In City of Johannesburg Metropolitan Municipality v Gauteng Development

Tribunal 2010 6 SA 182 (CC),a dispute arose between the City of Johannesburg
Metropolitan Municipality (hereafter referred to as the City) and the Gauteng
Development Tribunal (hereafter referred to as the Tribunal), a provincial organ
of state created by the Development Facilitation Act 67 of 1995 (hereafter
referred to as the Act). The dispute was about which sphere of government was
entitled to exercise the powers relating to the establishment of townships and
the rezoning of land within the municipal area of the City. The City contended,
inter alia, that these powers fall within the functional area of municipal planning,
which is a local government competence in terms of section 156(1) of the
Constitution, read with Part B of Schedule 4. The City further contended that the
provisions of the Act that empowered the Tribunal to rezone land and establish
townships were not in line with the Constitution and therefore invalid.
The Constitutional Court observed that to determine whether certain

provisions of the Act were in fact unconstitutional, it was necessary to
examine the contested provisions of the Act, relevant provisions of the
Constitution and the functional areas of ‘‘regional planning and develop-
ment’’, ‘‘provincial planning’’, ‘‘municipal planning’’ and ‘‘urban and rural
development’’. The court held that the capacity of one sphere to intervene in
the competence of another sphere is restricted by sections 100, 139, 156(1),
155(6)(a) and 155(7) of the Constitution. The effect of these provisions is that,
except in specified circumstances and to the extent set out, the executive
authority over, or the power to administer, matters listed in Part B of Schedules
4 and 5 vested in municipalities. Since ‘‘planning’’ is allocated to all three
spheres, the court held that the Constitution conferred different planning
129
responsibiIities on each of the spheres of government in accordance with
what is appropriate to each sphere. This was explained by means of an
example in paragraph 55 of the judgment:
the provinces exercise powers relating to ‘‘provincial roads’’ whereas

municipalities have authority over ‘‘municipal roads’’. The prefix attached
to each functional area identifies the sphere to which it belongs and
distinguishes it from the functional areas allocated to the other spheres. In
the example just given, the functional area of ‘‘provincial roads’’ does not
include ‘‘municipal roads’’. In the same vein, ‘‘provincial planning’’ and
‘‘regional planning and development’’ do not include ‘‘municipal planning’’.
The court held that municipal planning, as contained in Schedule 4 (Part B),
must be read in its commonly understood sense, that is, to include rezoning
and township establishment, and that local government has exclusive
authority over such matters. The court further held that ‘‘urban and rural
development’’ under Part A of Schedule 4 does not confer the same powers
(rezoning and township establishment) to the provincial sphere, as this would
be inconsistent with sections 41, 151 and 155 of the Constitution. The Court
held that ‘‘urban and rural development’’ is not broad enough to include the
powers forming part of ‘‘municipal planning’’. The contested provisions of the
Act were therefore found to be inconsistent with section 156 of the
Constitution, read with Part B of Schedule 4. (We will refer to this case
again in the context of cooperative government, which is a topic we will
discuss later on in this study unit.)
We learnt that national government may make laws where important policy
issues are at stake. In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & Others 2009
1 SA 337 (CC), a dispute arose between the parties, which hinged on the
approval of an application for the subdivision of agricultural land. The
Constitutional Court (par 80) emphasised that where the competences of two
spheres of government overlap, there is no reason why these overlapping
competences cannot coexist (i.e. the approval of subdivision of agricultural
land in the national sphere and the approval of subdivision in the local
sphere). The court, while recognising the enhanced status of municipalities,
pointed out that one sphere operates from a municipal perspective and the
other from a national perspective, each having its own constitutional and
policy considerations. The court noted that land, agriculture, food production
and environmental considerations are important national policy issues best
implemented in the national sphere. Municipalities are, therefore, responsible
for rezoning (determining and amending the use of land) and township
establishment on all land, except agricultural land, within its area of
jurisdiction. Agricultural land is dealt with by national government.
In Maccsand v City of Cape Town (Louw NO v Swartland Municipality neutral

citation 650/10 2011 ZASCA 142 was based on similar facts and the judgment
in Maccsand determined the outcome in the Swartland case), a dispute arose
on whether the granting of a mining right or a mining permit issued by the
Minister of Mineral Resources in terms of the MPRDA entitles the holder of the
right or permit to undertake mining operations without obtaining authorisation
in terms of the Land Use Planning Ordinance 15 of 1985 (C) (LUPO). LUPO
130
gives municipalities the power to determine and enforce land use in their
areas of jurisdiction. The appellants argued that the power to regulate mining
in the national interest includes the power to determine mining-related land
use rights, effectively excluding LUPO land use planning in respect of mining.
The Supreme Court of Appeal noted that the Constitution not only devolves
governmental powers between the legislative, executive and judicial branches
of government, but also divides legislative and executive powers among the
three spheres of government. The court stated that the Constitution allocates
powers to each sphere (par 12):
s 44 (national legislative competence); s 85(2) (national executive

competence); s 104(1) (provincial legislative competence); s 125(2)
(provincial executive competence); and ss 156(1) and (2) (local executive
and legislative competence). Schedule 4 of the Constitution lists functional
areas of concurrent national and provincial legislative competence and
Schedule 5 lists functional areas of exclusive provincial legislative
competence. In this way powers are distributed among, and in some cases
reserved, to each sphere of government. A necessary corollary of this is that
one sphere may not usurp the functions of another, although intervention by
one sphere in the affairs of another is permitted in limited circumstances.
The court held that LUPO makes provision for municipalities to regulate land
use in their areas of jurisdiction, subject to oversight by the provincial
government. In setting out the constitutional position of municipalities, the
court referred to section 151, 152(1) and (2), 155(6) and (7) and 156(1) and
agreed with the meaning of ‘‘municipal planning’’ as set out in City of
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal. The
court further held that the MPRDA does not provide for determination of land
use issues, nor does it displace LUPO by providing a replacement municipal
planning function. The two pieces of legislation operate alongside each other,
‘‘for as long as the Constitution reserves the administration of municipal
planning functions as an exclusive competence of local government, a
successful applicant for a mining right or a mining permit will also have to
comply with LUPO in the provinces in which it operates’’. This view was
subsequently confirmed in the Constitutional Court in Maccsand (Pty) Ltd v
City of Cape Town & Others 2012 SA 181 (CC).
Identify the spheres of government that can make laws on

planning and analyse the approach of the courts to the
Activity 4 legislative competence of the three spheres of government in
respect of planning.

. National and provincial government can make laws on regional planning and
development (Schedule 4).
131
. Provincial government has the exclusive legislative competence over provincial
planning (Schedule 5 (Part A)).
. Local government has exclusive authority over municipal planning (Schedule 4
(Part B)).
Make a summary of the salient legal points in the cases we discussed above.
Remember that planning entails land use and that land use and land use planning
have an impact on the environment, since most instances of environmental
degradation are connected to how we utilise land, such as for mining, township
development or farming. The fact that planning is divided among all three spheres of
government could lead to conflicting laws and conflicting views on the
implementation of laws by different spheres of government, as is apparent from
the cases discussed.
Environmental affairs are one of the important functional areas that is divided
(or shared) among all three spheres of government and can lead to legislative
and executive conflict between spheres of government. Problems have
already arisen due to the sharing of powers, as illustrated by City of
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal;
Louw NO v Swartland Municipality; Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd &
Others and Maccsand v City of Cape Town. The Constitution contains several
provisions dealing with the resolution of conflict, which we will explore in the
next section of this study unit.
5.2 Conflict between national and provincial

legislation
5.2.1 Schedule 4 matters (functional areas of concurrent

national and provincial legislative competence)
It is clear that there is a real danger of conflict between national and provincial
legislation in the functional area of Schedule 4 (concurrent powers). Section
146 deals with such conflict and provides that national legislation, which
applies uniformly to the country as a whole, prevails over provincial legislation
if, for example, any of the following conditions are met:
. where the matter cannot be regulated effectively by legislation enacted by
the respective provinces individually
. where the interests of the country as a whole require that the matter be
dealt with uniformly and national legislation thus establishes norms and
standards, national policies, et cetera
. where the national legislation is necessary for, inter alia, the protection of
the environment (subs (2))
In terms of subsection (3), national legislation also prevails when it is aimed at

preventing unreasonable action by a province. Unreasonable action by a
132
province is action that is prejudicial to the economic, health or security
interests of another province or the country as a whole, or impedes the
implementation of national economic policy.
5.2.2 Schedule 5 matters (functional areas of exclusive

provincial legislative competence)
National legislation referred to in section 44(2) of the Constitution prevails over
provincial legislation that is listed in Schedule 5. Section 44(2) refers to
legislation passed by Parliament that falls within the functional areas of
exclusive provincial legislative competence and that is passed to
. maintain national security, economic unity and/or essential national

standards
. establish minimum standards required for the rendering of services
. prevent unreasonable action taken by a province, which is prejudicial to
the interest of another province or to the country as a whole
5.2.3 Further provisions dealing with conflict

When a court of law has to decide which legislation should prevail, the other
legislation is not invalidated but becomes inoperative for as long as the
conflict remains (s 149). In interpreting the conflicting legislation, the court
must prefer a reasonable interpretation that avoids a conflict over an
alternative interpretation that could result in a conflict (s 150). In the case of
a dispute concerning a conflict that cannot be resolved by a court, national
legislation will prevail over provincial legislation or a provincial constitution
(s 148).
In terms of section 150 of the Constitution, a court, when

interpreting conflicting legislation, must prefer a reasonable
Activity 5 interpretation that avoids a conflict over an alternative
interpretation that could result in a conflict. Give an example
of recent case law that supports or illustrates the application
of section 150.

Read the discussion of Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & Others and
Maccsand v City of Cape Town . The following points were made by the courts: the
pieces of legislation operate alongside each other; the one does not displace the
other and the different spheres operate from different perspectives.
133
The division of environmental matters among national, provincial and local
government, each with its own departments, has far-reaching consequences
for environmental management. The division of environmental matters among
the three spheres of government and their various departments may give rise
to duplication of functions and disputes. It also makes it difficult to align
functions and ensure consistency, since each sphere/department functions
independently. The need for cooperation and intergovernmental relations is
obvious in view of our structure of government and the distribution of powers.
The drafters of our Constitution not only provided for the resolution of conflict
between national and provincial legislation, but also for cooperation between
the spheres of government and intergovernmental relations.
5.3 Cooperative government
NATIONAL PROVINCIAL
SPHERE SPHERE
LOCAL
SPHERE
The distribution of state powers and functions among the three spheres of
government and the various departments within each sphere necessitates
collaboration to ensure the effective functioning of the state machinery. The
principles of cooperative government, as set out in Chapter 3 of the
Constitution, determine the relationships between the spheres and the
organs of state. There should be close cooperation within the larger state
structure, recognising the distinctiveness, interdependence and interrelated-
ness of the entire state structure. All spheres of government and all organs of
state are bound by the principles of cooperative government and intergovern-
mental relations. Therefore, the essence of this constitutional framework is to
foster close cooperation between the different spheres of government in the
implementation of its policies and programmes in order to provide the people
with a coordinated and comprehensive approach in the delivery of services.
134
5.3.1 Section 40 of the Constitution
Chapter 3 of the Constitution forms the basis for the development of the
principle of cooperative governance:
In the Republic, government is constituted as national, provincial and local

spheres of government which are distinctive, interdependent and interrelated
(s 40(1)).
In addition, it further requires that
... all spheres of government must observe and adhere to the principles in
this Chapter and must conduct their activities within the parameters that the
Chapter provides (s 40(2)).
The development of cooperative governance is reinforced by section 195(1) in

Chapter 10 of the Constitution, which seeks to regulate the governing of the
public service within these spheres of government. This section entrenches
the basic values and principles, which provide that the public administration
be governed by democratic values and principles enshrined in the
Constitution in respect of
. administration in every sphere of government

. organs of state
. public enterprises
The regulation of cooperative government in the three spheres of government

is supplemented by the establishment of a monitoring body to ensure the
adherence to the prescripts of democratic values, as entrenched in section
195. The establishment of the Public Service Commission (PSC), in terms of
section 196, guarantees the independence and execution of its mandate,
without fear or favour, to ensure the maintenance of effective and efficient
public administration and a high standard of professional ethics in the public
service.
5.3.2 The principles of cooperative government and

intergovernmental relations
Can you think of principles that will enhance cooperative government and
intergovernmental relations?
Section 41(I) determines that all spheres of government and all organs of state
within each sphere must
(a) preserve the peace, the national unity and the indivisibility of the
Republic
(b) secure the wellbeing of the people of the Republic
(c) provide effective, transparent, accountable and coherent government for
the Republic as a whole
(d) be loyal to the Constitution, the Republic and its people
135
(e) respect the constitutional status, institutions, powers and functions of
government in the other spheres
(f) not assume any power or function except those conferred on them in
terms of the Constitution
(g) exercise their powers and perform their functions in a manner that does
not encroach on the geographical, functional or institutional integrity of
government in another sphere
(h) cooperate with one another in mutual trust and good faith by –
(i) fostering friendly relations

(ii) assisting and supporting one another
(iii) informing one another of, and consulting one another on,
matters of common interest
(iv) coordinating their actions and legislation with one another
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another
Section 41(1) outlines the principles of cooperative government and

intergovernmental relations that each sphere must adhere to. These
principles are based on showing mutual respect for one another’s
constitutional status, powers and functioning and consulting one another on
issues of common interest. This relationship requires the spheres of
government to observe and give effect to these principles encapsulated in
the Constitution. In essence, it can be deduced from the above that
cooperative government may be regarded as one of the cornerstones of the
new constitutional dispensation. Moreover, intergovernmental relations may
be regarded as an essential instrument for the delivery of services by the three
spheres of government, as required by section 7(2), which not only
entrenches respect for the rights, but requires the state to go even further
and ensure their fulfilment. Intergovernmental relations are central to the
successful implementation of many, if not all, government initiatives.
In City of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal (par 43), the Constitutional Court found as follows:
Section 40 of the Constitution defines the model of government
contemplated in the Constitution. In terms of this section the government
consists of three spheres: the national, provincial and local spheres of
government. These spheres are distinct from one another and yet
interdependent and interrelated. Each sphere is granted the autonomy lo
exercise its powers and perform its functions within the parameters of its
defined space. Furthermore, each sphere must respect the status, powers and
functions of government in the other spheres and ‘‘not assume any power or
function except those conferred on [it] in terms of the Constitution’’.
The court stated (par 50) that the functional areas as provided for in the
schedules of the Constitution must be interpreted to achieve autonomy and
distinctiveness for the spheres of government. In the preceding discussion of
this case, we learnt that the Constitutional Court found that ‘‘urban and rural
development’’, under Part A of Schedule 4, does not confer the same powers
136
(rezoning and township establishment) to the provincial sphere, as this would
be inconsistent with sections 41, 151 and 155 of the Constitution. The court
referred to section 41(1)(e)–(g) and reiterated that the spheres of government
must respect the functions of other spheres, refrain from assuming any
functions or powers not conferred on them by the Constitution and refrain from
encroaching on the functional integrity of the other spheres.
Section 41(2) provides for an Act of Parliament that must establish and
provide for structures and institutions to promote and facilitate
intergovernmental relations; and provide for appropriate mechanisms and
procedures to facilitate the settlement of intergovernmental disputes. The
passing of the Inter-governmental Relations Framework Act 13 of 2005 seeks
to give effect to and ensure that the principles set out in Chapter 3 of the
Constitution are implemented. Basically, the Framework Act creates various
structures that, for example, operate interdepartmentally and across the
spheres of government. Provision is made for mechanisms for the settlement
of intergovernmental disputes and to provide for matters connected therewith.
An organ of state involved in intergovernmental dispute must make every

reasonable effort to settle the dispute by means of mechanisms and
procedures provided for that purpose, and must exhaust all other remedies
before it approaches a court to resolve the dispute (s 41(3)). If a court is not
satisfied that the requirements of subsection (3) have been met, it may refer a
dispute back to the organs of state involved (s 41(4)). Clearly, the idea of
cooperative government includes dispute resolution provisions so that
intergovernmental disputes may be resolved without litigation (Maccsand v
City of Cape Town par 12).
Make a summary of the principles of cooperative government

and intergovernmental relations and state which Act was
Activity 6 passed to give effect to these principles.

This is an easy activity that merely requires you to revise and sum up the above
section of the work. The Act is the Intergovernmental Relations Framework Act 13 of
2005.
In the preceding discussion you learnt about the structure of the South African
government, the distribution of authority, and cooperative government. You
also learnt that environmental matters are divided ( or shared) among all three
spheres of government and that various departments within each of the
spheres are involved in or exercise functions that may affect the environment.
The provisions for resolving conflict between national and provincial
legislation were also examined. Naturally, environmental matters should be
137
regulated by the sphere of government that is most competent to deal with
such matters. You learnt that national legislation, which applies uniformly to
the country as a whole, will prevail over provincial legislation if national
legislation, for instance, is necessary for the protection of the environment or
is required for efficacy and uniformity across the nation by providing national
norms and standards and frameworks. NEMA was passed by the national
government to provide such norms, standards and frameworks.
5.4 Cooperative government and the National

Environmental Management Act 107 of 1998
5.4.1 Introduction
NEMA is regarded as the framework legislation for environmental
management in South Africa and has brought environmental management
within the framework of the new constitutional dispensation. The Preamble to
the Act emphasises the new constitutional dispensation, its founding values,
the environmental right and sustainable development. By means of NEMA, the
state endeavours, inter alia, to develop a framework for cooperative
environmental governance as reflected in its purpose.
The meaning of the word ‘‘governance’’:

Kotzé (in Paterson & Kotzé (eds) 2009: 106) points out that a distinction is
drawn between ‘‘government’’ and ‘‘governance’’, indicating that
‘‘government’’ relates to institutional structures and ‘‘governance’’ to a
process. The process of ‘‘governance’’ presupposes institutional
structures, that is, ‘‘government’’. After dissecting various definitions of
‘‘governance’’, Kotzé identified several constituent parts: a management
process that involves the participation of numerous actors; the promotion
of common interests embedded in law; and functions embedded in
governance, which include the formulation of policies and law and also
their implementation and enforcement.
The meaning of ‘‘environmental governance’’:
Kotzé (2009:107) defines this concept as follows:

A management process executed by institutions and individuals in the
public and private sector to holistically regulate human activities and
the effects of human activities on the total environment (including all
environmental media, and biological, chemical, aesthetic and socio-
economic processes and conditions) at international, regional,
national and local levels; by means of formal and informal
institutions, processes and mechanisms embedded in and
mandated by law, so as to promote the common present and future
interests human beings hold in the environment.
138
The meaning of ‘‘cooperative environmental governance’’:
Kotzé (2009:121) defines this concept as
the integration of the different spheres of government and line
functionaries at international, intra-regional and intra-governmental level;
co-operation between individual government officials in each sphere/line
functionary; co-operation between government officials in different
spheres/line functionaries; integration of policy, regulation methods and
tools, service provision and scrutiny; and co-operation with industry and
the public in order to achieve the principles of sustainability.
5.4.2 The purpose of NEMA

The purpose of NEMA is to provide for
. cooperative environmental governance by establishing principles for

decision-making on matters affecting the environment
. institutions that will promote cooperative governance
. procedures for coordinating environmental functions exercised by organs
of state
The purpose of NEMA is essentially to give effect to the principles of

cooperative government as provided for in Chapter 3 of the Constitution. The
provision for principles for decision-making, institutions to promote
cooperative governance and procedures for coordinating environmental
functions is important, as environmental matters are dealt with by all
spheres of government and also by various departments.
5.4.3 Principles of environmental management

Can you think of any environmental management principles that address
cooperative governance?
The principles of environmental management set out in Chapter I of NEMA

apply throughout the Republic to the actions of all organs of state that may
significantly affect the environment.
These principles apply alongside other appropriate and relevant

considerations, which the state has a responsibility to respect, protect and
promote (e.g. the socio-economic rights protected in the Bill of Rights and, in
particular, the basic needs of people disadvantaged by unfair discrimination).
The principles serve as a general framework within which the provisions of the
Act have to be administered by the organs of state.
The drafters of NEMA foresaw that the structure of government (i.e. the three
spheres, each with its own departments, and the distribution of powers
among these spheres and departments) could undermine effective
environmental governance and even lead to conflict. Included in the
139
national environmental management principles are principles (l) and (m),
which relate directly to the topic under discussion, namely, cooperative
governance:
. Principle (l) provides that there must be intergovernmental coordination

and harmonisation of policies, legislation and actions relating to the
environment.
. Principle (m), in turn, provides that actual and potential conflicts of interest
between organs of state be resolved through conflict resolution
procedures.
In giving effect to these principles, NEMA provides for a number of procedures

and institutions to ensure cooperation and coordination.
5.4.4 Institutions to facilitate cooperative environmental

management
Chapter 2 deals with the establishment, composition and functions of fora or
advisory committees. Provisions for the National Environmental Advisory
Forum and the Committee for Environmental Coordination were repealed in
2009. This may be regarded as a step in the wrong direction, since the
rationale for the creation of the Forum was to place at the disposal of the
Minister a forum comprising a well-balanced mixture of representatives to
inform the Minister of the views of interested and affected parties. The
principal role of the Committee was to manage the fragmented performance
of environmental functions by various government departments at both the
horizontal and the vertical levels/spheres of government and to promote and
ensure integration and coordination regarding the implementation of
environmental policies by the government. The composition of the
Committee reflected these objectives of coordination and integration of
environmental functions, since all the directors-general of departments
involved with environment-related functions served on the Committee.
5.4.5 Procedures and mechanisms to facilitate

cooperative environmental governance
5.4.5.1 Chapter 3: Procedures for cooperative environmental

governance
Chapter 3 deals with procedures for cooperative environmental governance.
. Provision is made for environmental implementation plans and

management plans (s 11). Environmental implementation plans must
be prepared by all national departments listed in Schedule 1 and every
province. The national departments listed in Schedule 1 are considered to
exercise functions that may affect the environment. These departments
are Environmental Affairs, Rural Development and Land Reform,
Agriculture, Forestry and Fisheries, Human Settlements, Trade and
140
Industry, Water Affairs, Transport, Tourism, Defence, Public Works, and
Public Enterprises.
Every national department listed in Schedule 2 must prepare an
environmental management plan. The national departments listed in
Schedule 2 are considered to exercise functions that involve the
management of the environment. These departments are Environmental
Affairs, Water Affairs, Mineral Resources, Energy, Rural Development and
Land Reform, Health, and Labour.
The provinces and departments must further ensure that these environ-
mental implementation or management plans are consistent. This
provision is in line with the purpose and objects of environmental
implementation plans and environmental management plans, as provided
for in section 12. The purpose and objects of these plans are to
– coordinate and harmonise the environmental policies, plans, pro-
grammes and decisions of the various listed national departments and
of provincial and local spheres of government, which must be done to
minimise the duplication of procedures and functions and to promote
consistency
– give effect to the principle of cooperative government in Chapter 3 of
the Constitution
– secure the protection of the environment across the country as a
whole
– prevent unreasonable actions by provinces in respect of the
environment, which actions are prejudicial to the economic or health
interests of other provinces or the country as a whole
– enable the Minister to monitor the achievement, promotion and
protection of a sustainable environment
. Provision is made for ensuring compliance with environmental

implementation plans and environmental management plans in
section 16. Section 16A provides for an environment outlook report.
The Minister (‘‘Minister’’ means the Minister responsible for environmental
matters) must within four years of the coming into operation of the National
Environmental Management Laws Second Amendment Act, 2013, prepare
and publish a national environment outlook report for the Republic and at
intervals of not more than four years thereafter. (The National
Environmental Management Laws Second Amendment Act, 2013 came
into operation on 18 December 2014.)
5.4.5.2 Chapter 4: Fair decision-making and conflict management

In the section of this study unit that deals with the concurrent and exclusive
powers of the spheres of government, it is evident that the division of powers
and functions is complex and may lead to conflict. We saw that provision is
made in the Constitution for instances of conflict. We also learnt that
environmental matters fall under the jurisdiction of all the spheres of
government and are also spread across various departments whose
141
functioning may have an impact on the environment. In Chapter 4, NEMA
makes provision for fair decision-making and conflict management to address
any possible conflict that may arise.
In instances of conflict concerning the exercise of functions that may

significantly affect the environment, or an appeal arising from conflict
regarding the protection of the environment, any minister, MEC or municipal
council may, before reaching a decision, consider the desirability of first
referring the matter to conciliation (s17(1)(a) and (b)). Where a matter has
been referred to conciliation in terms of NEMA, the Director-General may
appoint a conciliator acceptable to the parties to assist in resolving the
conflict (s 18(1)). Where conciliation fails, the matter may be referred to
arbitration in terms of the Arbitration Act 42 of 1965 (s 18(6) and s 19(1)).
Section 20 makes provision for the appointment of persons by the Minister of
Environmental Affairs to assist him or her or a municipal council or an MEC or
another national minister in evaluating (conducting investigations) of a matter
relating to the protection of the environment. All these measures are aimed at
resolving differences and disagreements speedily and cheaply.
How does Chapter 4 of NEMA give effect to the principles of

cooperative government and intergovernmental relations, as
Activity 7 provided for in Chapter 3 of the Constitution?

Section 41 of the Constitution determines that all spheres of government and all
organs of state within each sphere must, inter alia, preserve the peace and national
unity; provide coherent government; respect the constitutional status, institutions,
powers and functions of other spheres; not encroach on the geographical,
functional or institutional integrity of another sphere; and cooperate in mutual trust
and good faith (terms used to describe the relationship include ‘‘assisting’’,
‘‘supporting’’, ‘‘informing’’, ‘‘consulting’’, ‘‘coordinating’’ and ‘‘avoiding legal
proceedings against one another’’). In Chapter 4, NEMA gives effect to these
provisions by providing for conciliation, arbitration and evaluation of matters relating
to the protection of the environment. These provisions ensure that differences are
resolved and, in the process, the other principles of cooperative government and
intergovernmental relations are adhered to.
142
5.4.5.3 Chapter 5: Provisions that facilitate intergovernmental
coordination
South Africa is aiming to achieve an environmental framework that manages
land use. This framework is intended to control the development process to
achieve the best present and future uses of the country’s entire land area,
taking into consideration relevant social, economic and environmental factors.
This comprehensive framework is described as integrated environmental
management (IEM) in Chapter 5 of NEMA. (You will learn more about
integrated environmental management in study unit 6.) A major objective of
IEM is to integrate the various principles of environmental management set
out in Chapter 1 of NEMA (s 2), which include intergovernmental coordination
and harmonisation of policies, legislation and actions relating to the
environment. Several provisions in Chapter 5 can be identified as giving
effect to this principle:
. Section 24(4)(a))(i) stipulates that in every application for an environmental
authorisation, there must be 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.
. Section 24(4)(b) stipulates that every application for an environmental
authorisation must include, where applicable, an investigation and
assessment of the impact of any proposed listed or specified activity on
certain national estates in terms of the National Heritage Resources Act 25
of 1999.
. Section 24K provides for consultation between competent authorities
where authorisation is required in terms of NEMA and in terms of other
legislation in order to coordinate the respective requirements of such
legislation and to avoid duplication.
. Section 24L provides for the alignment of environmental authorisations. A
competent authority empowered under Chapter 5 to issue an
environmental authorisation and any other authority empowered under a
specific environmental management Act may agree to issue an integrated
environmental authorisation.
5.4.5.4 Chapter 6: Reports to Parliament

Chapter 6, which deals with international obligations and agreements,
requires the Minister of Water and Environmental Affairs to report to
Parliament once a year on such matters. The report should cover, among
other matters, the efficacy of coordination mechanisms.
5.4.5.5 Chapter 7 Compliance and enforcement

If the environmental mineral resource inspectors are unable or not adequately
able to fulfil the compliance monitoring and enforcement functions, the
Minister responsible for environmental matters may, with the concurrence of
the Minister responsible for mineral resources, designate environmental
143
management inspectors to implement these functions in terms of this Act or a
specific environmental management Act in respect of which powers have
been conferred on the Minister responsible for mineral resources (s31D(4)).
5.4.5.6 Chapter 8: Cooperation agreements

Chapter 8 provides that the Minister and every provincial government and
local authority may enter into environmental management cooperation
agreements with any person or community for the purpose of promoting
compliance with the principles set out in Chapter 1. To be valid, such an
agreement requires the concurrence of the sphere of government or the other
organ of state that is responsible for the activity or the area affected by the
agreement.
5.4.6.7 Chapter 9: Draft model by-laws

Chapter 9 contains provisions that point towards cooperative government and
capacity development of municipalities. Section 46 states that the Minister
may draft model by-laws aimed at establishing measures for the management
of the environmental impacts of any development within the jurisdiction of a
municipality. These by-laws may be adopted by a municipality as municipal
by-laws. Municipalities may also request the Director-General to assist them
with the preparation of by-laws on matters affecting the environment and he/
she may even introduce programmes to assist municipalities with the
preparation of by-laws to facilitate the implementation of the Act.
Give an example where cooperation between spheres of

government is required and indicate how NEMA makes
Activity 8 provision for cooperation between the different spheres of
government.

You can, for example, refer to environmental implementation plans and management
plans (s11).
Environmental implementation plans must be prepared by all national departments

listed in Schedule 1 and every province. Every national department listed in
Schedule 2 must prepare an environmental management plan. The provinces and
departments must further ensure that these environmental implementation or
management plans are consistent.
144
5.5 Concluding remarks and postscript
In this study unit we learnt that the structure of the state and the division of
powers and functions affect the management of the environment directly,
since environmental matters are not only divided among the three spheres of
government, but also spread out across different departments within each
sphere of government. Seeing that each sphere/department functions
independently, the need for conflict resolution, alignment, consistency,
cooperation and intergovernmental relations is obvious. We also learnt
about the range of provisions contained in the Constitution, NEMA and
other legislation aimed at addressing this need. In the next study unit you will
learn more about integrated environmental management.
POSTSCRIPT:
Since you are on the brink of starting your career in private practice or in the
public sector, it is important for you to utilise and develop this policy and
legislative framework and these structures and mechanisms to ensure an
integrated environmental management system, since the possibility of a
conflict of interests may still arise. Read the following extract from Legalbrief
Environmental dated 21 February 2017:
General: Key battle over who calls the shots at mines

A major environmental case began in the Western Cape High Court
yesterday (Monday), involving an Australian mining company’s allegedly
illegal activities at its West Coast mine, Tormin, that resulted in massive
environmental destruction. The dispute had potentially far-reaching legal
and environmental consequences for the SA mining industry. This, says a
GroundUp report, is the future application of the government’s recently
introduced management system that transferred full responsibility for
granting, monitoring and enforcing the conditions of environmental
authorisations for prospecting and mining operations to the Department of
Mineral Resources (DMR). The ‘One Environmental System’ was designed
to improve efficiencies and reduce bureaucracy and delays in the approval
and management processes in the industry. However, many believe that
assigning responsibility for the vital but contested environmental component
of the mining industry to the DMR has been the equivalent of putting the fox
in charge of the hen-house. And during the past two years, the DMR has
come in for stinging criticism for not tackling its new environmental
compliance responsibilities with enthusiasm or effectiveness. The High
Court review application has been brought by Mineral Sands Resources
(MSR). It argues that both the Department of Environmental Affairs and the
Western Cape’s Department of Environmental Affairs and Development
Planning lack any legal jurisdiction to monitor and enforce compliance with
Tormin’s statutory environmental management programmes. MSR contends
this is because the ‘One Environmental System’ has given exclusive
compliance authority at Tormin to the DMR.
145
1. Give a brief outline of the structure of the South African government
and the distribution of authority. (6)
2. Provide a list of environmental matters where the national
legislative authority has exclusive competence to make laws. (3)
3. Identify the national departments listed in Schedules 1 and 2 of NEMA
that are considered to exercise functions that may affect the
environment or that involve the management of the environment. (15)
4. Give an example of exclusive provincial legislative competence. (1)
5. Explain what is meant by horizontal fragmentation in this context and
give an example of horizontal fragmentation. (3)
6. Explain what is meant by vertical fragmentation in this context and
give an example of vertical fragmentation. (3)
7. How did the Constitutional Court interpret ‘‘municipal planning’’ in City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal? (3)
8. How is conflict between national and provincial legislation dealt with
in terms of section 146 of the Constitution? (5)
9. Which sections in the Constitution provide for cooperative government
and intergovernmental relations? (2)
10. What is the purpose of NEMA? (3)
11. Give an example of an institution that facilitates cooperative
environmental management. (1)
12. List the procedures and mechanisms that facilitate cooperative
environmental governance. (13)
146
THEME III
THE MANAGEMENT OF THE ENVIRONMENT

(THE IMPLEMENTATION AND
ADMINISTRATION OF ENVIRONMENTAL
LAW)
147
STUDY UNIT
6
Integrated environmental management
OVERVIEW
South Africa strives to achieve a comprehensive environmental framework to manage land
use – a framework that controls the development process to achieve the best present and
future uses of its entire land area, taking into consideration relevant social, economic and
environmental factors. This comprehensive framework is described as integrated
environmental management (IEM) in Chapter 5 of NEMA. Before a developer can
commence with certain developments, an environmental authorisation must be obtained.
An authorisation need not be obtained for all developments, but only for certain listed or
specified development activities. A variety of environmental management tools and
procedures are used to determine the impact of a particular development on the
environment. An environmental impact assessment (EIA) is used as a tool to achieve the
general objectives of IEM and to give effect to the national environmental management
principles of NEMA. Environmental impact assessments (EIAs) essentially facilitate
sustainable development planning and decision-making by anticipating and managing
the adverse effects and consequences of proposed developments.
& explain the significance of integrated environmental management (Chapter 5 of

the National Environmental Management Act of 1998 (NEMA)) in realising the
environmental right
& outline the main objectives provided by NEMA to achieve integrated environ-
mental management in South Africa
& explain the procedures and environmental management tools that govern as-
sessment and evaluation in an integrated environmental management (IEM)
system
& discuss the importance of the assessment and evaluation of development activ-
ities
148
6.1 Towards integrated environmental
management in South Africa
6.1.1 Introduction
Throughout the world there is a growing realisation that land use constitutes
more than merely using land; it is a means to realise a range of human
objectives, including environmental, social and economic objectives.
Previously, no significant connections were made between land use and
environmental regulation; these two areas of law developed independently, for
the most part, and were aimed at addressing different sets of problems. Today
it is accepted that most cases of environmental degradation have a spatial
dimension or a connection with land use. Two issues became evident:
. Firstly, land use and land use planning have environmental, social and
economic impacts.
. Secondly, land use planning was not providing a consistent integrated
approach to social, economic and environmental problems.
The failure to link land use with environmental conservation led to the
unsustainable use of land, which gave rise to calls for a more comprehensive
and integrated approach to land use. For South Africa, the ultimate goal is to
achieve a legislative and policy framework that enables government to
formulate policies, plans and strategies for land use and development that
deal with and resolve the spatial, economic, social and environmental
problems of the country, in other words, a comprehensive framework that
analyses and recommends the best present and future uses of its entire land
area, taking into consideration relevant social, economic and environmental
factors.
In this section, we concentrate on integrated environmental management

(IEM). The formulation of the IEM policy was originally recommended by the
Council for the Environment in 1984. Although these IEM policy principles
were not implemented properly, partly because of the political climate at the
time, they now constitute the core elements of our new environmental
management system and are set out in Chapter 5 of NEMA. A major objective
of integrated environmental management is to integrate the various principles
of environmental management set out in Chapter 1 (s 2) of NEMA and,
therefore, also to implement sustainable development (or sustainability) in
environmental management in South Africa. In other words, the term
‘‘integrate’’ requires that the principles of environmental management be
incorporated in such a way that they become an integral part of environmental
management. These principles apply throughout the Republic to the actions
of all organs of state that may significantly affect the environment. The
national environmental management principles (s 2) therefore serve as a
general framework within which the provisions of the Act have to be
administered by the organs of state.
149
6.2 What is integrated environmental
management?
IEM is a procedure designed to ensure that the environmental consequences
of developments (or projects) are understood and adequately considered in
the planning process. It provides a guide for the development process and
serves to refine and improve proposed policies, programmes and projects
through a series of procedures that are linked to the development process.
The purpose of Chapter 5 of NEMA – ‘‘Integrated environmental
management’’ – is to promote the application of appropriate environmental
management tools in order to ensure the integrated environmental
management of activities (s 23(1)).
6.2.1 Integrated environmental management objectives

The general objectives of IEM are set out in Chapter 5, section 23, of NEMA
and provide the context (or the background) for environmental authorisations
described in section 24. The objectives are to
. promote the integration of the principles of environmental management

set out in section 2 into the making of all decisions that may have a
significant effect on the environment
. identify, predict and evaluate the actual and potential impact on the
environment, socio-economic conditions and cultural heritage, and the
risks, consequences, alternatives and options for mitigation of activities,
with a view to minimising negative impacts, maximising benefits and
promoting compliance with the principles of environmental management
set out in section 2
. ensure that the effects of activities on the environment receive adequate
consideration before actions are taken in connection with them
. ensure adequate and appropriate opportunity for public participation in
decisions that may affect the environment
. ensure the consideration of environmental attributes in management and
decisionmaking that may have a significant effect on the environment
. identify and employ the modes of environmental management best suited
to ensuring that a particular activity is pursued in accordance with the
principles of environmental management set out in section 2
The objectives of IEM are to integrate the principles of environmental

management with the planning and development process of the proposed
activity and to identify, predict and evaluate the effects that policies,
programmes, proposals or projects may have on the environment by
ensuring thorough consideration of their effects on the environment and
public participation before making a decision.
150
Page back to study unit 4, where the national environmental
management principles are discussed. Refresh your memory
Activity 1 by reading the relevant section in study unit 4. The concept
‘‘sustainable development’’ is discussed in study units 1, 2, 3
and 4. Page back to these study units and make sure that you
understand the nature and the scope of this concept. Then
explain the significance of integrated environmental
management (Chapter 5 of the National Environmental
Management Act of 1998 (NEMA)) in realising the
environmental right.
In study unit 4 you learnt that the national environmental management principles (s 2)
call for, inter alia, development that is socially, environmentally and economically
sustainable; the pursuit of the best practicable environmental option; environmental
justice; and intergovernmental coordination. You also learnt that these principles
must be used as guidelines when any organ of state makes a decision in terms of
NEMA or any statutory provision concerning the protection of the environment, for
example a decision to grant an environmental authorisation. The decision-making
process must be open and transparent, allowing for participation by all interested
and affected people, including the marginalised. IEM must therefore promote the
integration of the principles of environmental management, as set out in section 2,
into the making of all decisions (e.g. to grant or refuse an authorisation for a golf
estate development) that may have a significant effect on the environment.
An important national environmental management principle is sustainable

development. In NEMA, ‘‘sustainable development’’ is defined in section 1 as ‘‘the
integration of social, economic and environmental factors into planning,
implementation and decision-making so as to ensure that development serves
present and future generations’’.
Throughout section 2, sustainable development, elements of sustainable

development and factors relevant to sustainable development are highlighted. We
can therefore conclude that the general objectives of IEM embrace sustainable
development and serve as a means to ensure adherence to sustainable
development. In study unit 4 you learnt that the environmental clause (s 24(b)(iii))
in the Constitution demands that sustainable development be included in
environmental decision-making, and the courts endorsed that view in BP
Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs
2004 5 SA 124 (W) at 144B–C; Fuel Retailers Association of Southern Africa v
151
Director-General Environmental Management, Department of Agriculture,
Conservation and Environment, Mpumalanga Province and Others 2007 10
BCLR 1059 (CC). (These decisions are available in your e-reserves.)
IEM objectives are achieved by using the appropriate environmental

management tools. The potential consequences for, or impacts on, the
environment of listed or specified activities must be considered, investigated,
assessed and reported on to the competent authority. This is achieved
through applications for authorisation to commence with certain activities, and
includes an environmental impact assessment (EIA). To achieve IEM,
applications for authorisation and EIAs are used as environmental
management tools to realise the general objectives of IEM. It can therefore
be said that these environmental management tools give effect to IEM, as they
provide for informed decision-making, accountability for decisions taken and
an open, proactive and participatory approach.
6.3 Important terms

A number of important terms were used in the previous paragraph. These and
other relevant terms are listed below:
activities
applicant
assessment
commence
competent authority
environmental assessment practitioner
environmental authorisation
environmental management programme
evaluation
interested and affected parties
listed activity
public participation process
specified activity
These terms are used throughout Chapter 5 of NEMA and the Environmental
Impact Assessment Regulations 2010. Read the definitions of these terms in
section 1 of NEMA.
To explain the relationship between these terms, consider the following

scenario and diagram. (Don’t be alarmed if you cannot immediately identify all
the pertinent issues; the issues will become clearer as you work through the
rest of this study unit and keep the diagram in mind.)
152
A company called Capstone (Pty) Ltd wants to build a housing and golf
estate in Mpumalanga, outside an urban area on a piece of undeveloped
land. The development is proposed in an area of pristine grasslands and
wetlands. The grasslands and wetlands are the habitats of many
endangered species. The proposed construction of the housing and golf
estate will transform an area of 100 hectares. The proposed development
will consist of approximately 50 residential units, an 18-hole golf course, a
driving range, a clubhouse, a conference centre, a lodge, staff
accommodation, sewage treatment works and an irrigation reservoir.
The neighbouring landowners are concerned that the development will
affect the endangered species owing to an increase in traffic, activity,
noise and the general disturbance of the terrain. They are also concerned
that the development will have an impact on the water resources of the
area, because the maintenance of a golf course requires a tremendous
amount of water. These landowners have already experienced a decline in
the water resources, since this will be the third development of this nature
in the area. They have also experienced a decline in water quality as a
result of pesticides, herbicides and fertilisers that seep into the ground
water. As a result, many of the neighbouring landowners have lodged
objections to the proposed development. However, Capstone (Pty) Ltd
claims that the development will benefit the local community because it
will provide a large number of jobs in this poverty-stricken region.
OUTLINE OF PROCEDURAL ASPECTS
Capstone (Pty) Ltd (applicant) wants Competent authority grants/

to develop refuses application for authorisation
"
"
Applicant appoints Must comply with:

environmental assessment practitioner 1. Environmental right (sustainable
(EAP) development)
2. Environmental management
"
EAP manages environmental principles

impact assessment 3. Integrated environmental
(EIA) process management (IEM)
"
"
EIA process
Competent authority evaluates
"
Public participation application for authorisation

"
"
Notice to interested and affected parties Applicant submits application

"
"
Interested and affected parties object/

"
give input " " " "
153
Thus far, we have mentioned a number of people and/or institutions that are
involved in the development process. The following is a brief explanation of
the parties, their roles in the process and the context in which the relevant
terms are used.
The following parties are involved in the process:
(1) Capstone (Pty) Ltd (the applicant) intends to build the housing and golf
estate and must apply for the necessary environmental authorisation. The
application for the environmental authorisation must follow the
procedures outlined in NEMA and the Environmental Impact
Assessment Regulations.
(2) The state (competent authority) makes the decision to grant or refuse
the environmental authorisation. The competent authority must evaluate
the environmental impact of the activity.
(3) The neighbouring landowners (interested and affected parties) object
to the application for authorisation to develop. The neighbours are
involved in the public participation process.
In study unit 4 you learnt that the Promotion of Administrative Justice Act
(PAJA) makes provision for a fair procedure where the rights of the public
are affected by administrative action. The purpose of this procedure is to
remedy the position that prevailed in the past when the general public had
little or no input prior to administrative action being taken that affected
them (the general public). PAJA provides the general public with a right to
be heard on issues of public concern, through a public hearing or notice-
and-comment procedure.
All legislation that provides for public participation, such as the provisions
of NEMA regarding the EIA process, must comply with the provisions of
PAJA. During the EIA process, individuals who are affected by the
proposed action are informed by individual notice, and the general public
is notified through notice on the property concerned, notice in a local/
provincial/national newspaper or notice in the relevant Gazette. The notice
must indicate that an application will be submitted to the competent
authority in terms of the EIA regulations. It must state the nature and the
location of the activity, where further information on the proposed activity
can be obtained and the manner in which representations can be made in
respect of the application.
Further on is an example of an official notice of a public participation
process that alerts people to specific developments so that they can
comment, object or make other inputs.
(4) The environmental assessment practitioner (EAP) is the individual
responsible for planning, managing and coordinating environmental
impact assessments. An EAP plays a central role in the whole
assessment process. Before applying for environmental authorisation
for an activity, an applicant must appoint an EAP at own cost to manage
the application. The public participation process forms part of
154
environmental impact assessment. Potential interested and affected
parties (the neighbours) are given an opportunity to comment on or
raise issues relevant to the application for authorisation.
The EAP conducting a public participation process must take any
guidelines applicable to public participation into account and must give
notice to all potential interested and affected parties of the application that
is subjected to public participation. This must be done, firstly, by affixing a
notice board at a place conspicuous to the public, at the boundary or on
the fence of the relevant site and, secondly, by giving written notice to:
. owners and occupiers of land adjacent to the site

. owners and occupiers of land within 100 metres of the boundary of
the site
. the municipal councillor of the ward and any organisation of
ratepayers that represent the community in the area
. the municipality that has jurisdiction in the area
. any organ of state having jurisdiction in respect of any aspect of the
activity
. the occupiers of the site and the owner of the site or person in control
of the site, if the applicant is not the owner or person in control
Then advertisements must be placed in one local newspaper or any Official

Gazette published specifically for the purpose, and in at least one provincial
newspaper or national newspaper.
The person conducting the public participation process must ensure that
information containing all the relevant facts is made available to all potential
interested and affected parties, and that all these parties have a reasonable
opportunity to comment on the application.
The competent authority makes a decision on the application for the

development by Capstone (Pty) Ltd (the applicant). In making the decision,
it evaluates all information contained in the application, as well as the
objections.
The following is an extract from a newspaper report that illustrates the vital role
that an EAP plays and the importance of an accurate and comprehensive EIA:
Consultant guilty of faulty EIA in landmark judgment
In what The Mercury calls a landmark judgment, Gauteng environmental

consultant Stefan Frylinck (37) has been found guilty in the North Gauteng
High Court of giving misleading or incorrect information to authorities in an
environmental impact assessment. It has been hailed as a ‘‘wake-up call’’ for
environmental practitioners in SA, some criticised for producing sloppy
EIAs or ‘‘sweetheart reports’’, which either gloss over environmental issues
or put a rosy spin on proposed developments. Frylinck, from Mpofu
Environmental Solutions, was found guilty of supplying the Department of
Environment Affairs with misleading or incorrect information under the
155
Source: Business Day, Friday, 3 December 2010.
National Environmental Management Act. The case dealt with the

environment impact study done by Frylinck for the Pan Africa Parliament
building in Midrand. The development proposal required that an EIA be
done before the authorities gave it the go-ahead. When the construction was
at an advanced stage, they ran into problems with flooding. It emerged that
the building was being erected on a protected wetland, which had not been
revealed in the EIA. The authorities had given the development the go-ahead
on the basis of a faulty EIA (Legalbrief no 2779 14 April 2011).
156
The Environmental Impact Assessment Regulations 2014, as amended, sets
out the appointment of EAPs, the general requirements for EAPs, the
disqualification of EAPs and the determination of the assessment process
applicable to the application (in Regulations 12–15).
In the following sections, these terms, procedures and tools are further
unravelled with reference to the scenario. Remember that all these procedures
and tools are aimed at achieving the objectives of IEM and the environmental
management principles of NEMA, and, ultimately, realising the environmental
right.
6.4 Environmental authorisations

Why do you think provision is made for environmental authorisations?
In order to give effect to the general objectives of IEM, as set out in Chapter 5
of NEMA, the potential consequences for or impacts on the environment of
listed or specified activities must be considered, investigated and reported on
to the competent authority (s 24(1)). The definition of an environmental
authorisation, as set out above, states that it is the authorisation by a
competent authority of a listed or specified activity in terms of NEMA, and
includes a similar authorisation contemplated in a specific environmental
management Act. Therefore, before a developer like Capstone (Pty) Ltd can
commence with a development that involves a listed or specified activity, an
authorisation (permission) must be obtained from a competent authority.
In general, the competent authority is the environmental authority in the

province in which the activity is to be undertaken. In other words, an
application for environmental authorisation must generally be submitted to the
provincial department responsible for environmental affairs in the particular
province. In instances where the activity has, for example, implications for
international environmental commitments, or will take place within an area that
is protected by an international environmental instrument, the Minister
responsible for environmental matters is the competent authority (s 24C(2)).
Section 24C(2A) provides that the Minister responsible for mineral resources
must be identified as the competent authority in terms of subsection (1) if the
listed or specified activity is directly related to prospecting or exploration of a
mineral or petroleum resource; or extraction and primary processing of a
mineral or petroleum resource.
NOTE: The Minister responsible for mineral resources will decide on the
environmental authorisation of mining and related activities. The
decisions in this respect by the Minister responsible for mineral
resources will, however, be subject to NEMA and the Environ-
mental Impact Assessment Regulations 2014. In other words, all
environmental aspects relating to mining are regulated through
NEMA. The Minister of mineral resources will therefore issue
157
environmental authorisations in terms of NEMA and the Minister
responsible for environmental matters is the appeal authority for
those authorisations.
6.4.1 Identification of activities or geographical areas that

require an authorisation
Section 24(2) of NEMA provides that the Minister, or an MEC with the
concurrence of the Minister, may identify activities or geographical areas for
which an environmental authorisation is required and which may not
commence or in which specified activities may not commence before
environmental authorisation is obtained from the competent authority.
The following may be identified:

. activities that may not commence without environmental authorisation
. geographical areas based on environmental attributes, and as specified in
spatial development tools, in which specified activities may not
commence without environmental authorisation
. geographical areas based on environmental attributes, and specified in
spatial tools or environmental management instruments, in which
specified activities may be excluded from the requirement to obtain an
environmental authorisation from the competent authority
The Minister or MEC has a duty to publish a notice in the Government Gazette
or the Provincial Gazette containing lists of activities and areas so identified. In
addition, the competent authorities and the date on which the list is to come
into effect have to be indicated.
These activities and areas are now contained in a set of regulations entitled
Environmental Impact Assessment Regulations 2014, as amended.
The regulations, issued in terms of section 24 of NEMA, were published in

2014 and repealed the previous 2010 Environmental Impact Assessment
Regulations, which in turn repealed the (2006) EIA regulations, which in turn
repealed the EIA Regulations issued in terms of the Environment Conservation
Act 23 of 1989 (ECA). The Environmental Impact Assessment Regulations
2014 were subsequently amended (7 April 2017).
All new activities (eg developments and projects that require environmental
authorisation) have to follow the prescriptions of the new NEMA EIA
Regulations. However, all the case law regarding the EIA procedure and
environmental authorisation still deals with the ECA EIA regime, for example
HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism 2006 5
SA 512 (T); Fuel Retailers Association of SA (Pty) Ltd v Director-General
Environmental Management, Department of Agriculture, Conservation and
Environment, Mpumalanga Province and Others 2007 10 BCLR 1059 (CC)
158
(this decision is reproduced in the e-reserves); and MEC for Agriculture,
Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another
2006 5 SA 483 (SCA). Therefore, bear in mind that current case law has been
judged in terms of the ECA EIA regulations, but within the general framework
provisions of NEMA, as prescribed in sections 23–24.
6.4.2 Minimum conditions of environmental authorisations

The minimum conditions attached to environmental authorisations are that
(s 24E)
. adequate provision must be 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 must be specified
. provision must be made for the transfer of rights and obligations
6.4.3 General conditions of environmental authorisations

In every application for an environmental authorisation, the following precepts
must be adhered to (s 24(4)(a)):
. There must be coordination and cooperation between organs of state in

the considerations of assessments where an activity falls under the
jurisdiction of more than one organ of state.
. The findings and recommendations flowing from an investigation, the
general objectives of integrated environmental management and the
principles of environmental management as set out in section 2,
Chapter 1, must be taken into account.
. A description of the environment likely to be significantly affected by the
proposed activity must be contained in the application.
. The potential consequences for or impacts on the environment of the
activity must be investigated and the significance of those potential
consequences or impacts must be assessed.
. Public information and participation procedures that provide all interested
and affected parties, including all relevant organs of state, with a
reasonable opportunity to participate in the information and participation
procedures must take place.
6.4.4 Specific conditions of environmental authorisations

Where environmental impact assessment (EIA) has been identified as the
environmental tool to be utilised in informing an application for environmental
authorisation, the following must also be included in the application
(s 24(4)(b)):
. investigation of the potential consequences or impacts of the alternatives

to the activity on the environment and assessment of the significance of
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those potential consequences, including the option of not implementing
the activity
. investigation of mitigating measures to keep adverse consequences or
impacts to a minimum
. 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 25 of 1999, excluding the national
estate contemplated in section 3(2)(i)(vi) and (vii) of that Act
Example: Assume that the building of the housing and golf estate in the
above scenario will have an impact on a cultural heritage site. The developer,
Capstone (Pty) Ltd, will then also have to follow the procedure in terms of the
National Heritage Resources Act 25 of 1999. In the context of developments
that threaten heritage resources, the National Heritage Resources Act
provides for a National Heritage Authority and for provincial heritage
resource authorities. These authorities are responsible for protecting and
managing certain categories of heritage resources and they are the authorities
that must make the decision on whether to permit the development or not.
Note that compliance with the procedures laid down in terms of section
24(4) does not absolve a person from complying with any other statutory
requirement to obtain authorisation from any organ of state charged by
law with authorising the activity in question. Section 24L, however,
provides for the alignment of environmental authorisations. For example,
in certain instances, a listed or specified activity regulated by NEMA may
also be regulated in terms of another law or specific environmental
management Act. In such a case, the authority empowered under a
specific environmental management Act to authorise that activity and the
competent authority empowered under NEMA in respect of that activity
may exercise their powers jointly by issuing an integrated environmental
authorisation.
. reporting on gaps in knowledge, the adequacy of predictive methods and

underlying assumptions, and uncertainties encountered in compiling the
required information
. investigation and formulation of arrangements for the monitoring and
management of consequences for or impacts on the environment, and
assessment of the effectiveness of such arrangements after their
implementation
. consideration of environmental attributes identified in the compilation of
information and maps contemplated in subsection (3)
. provision for the adherence to requirements that are prescribed in a
specific environmental management Act relevant to the listed or specified
activity in question
Section 24N(1A) provides that where an environmental impact assessment

has been identified as the environmental instrument to be utilised as the basis
160
for a decision on an application for environmental authorisation, the Minister,
the Minister responsible for mineral resources or an MEC must require the
submission of an environmental management programme before deciding
an application for an environmental authorisation. The environmental
management programme must contain information on any proposed
management, mitigating, protection or remedial measures that will be
undertaken to address the environmental impacts spanning the planning
phase right through to the rehabilitation of the environment and closure of the
operation. The environmental management programme must also, inter alia,
set out the mechanisms proposed for monitoring compliance with the
environmental management programme and for reporting on the
compliance; and measures regulating responsibilities for any environmental
damage, pollution, pumping and treatment of polluted or extraneous water or
ecological degradation that may occur inside and outside the boundaries of
the operations in question.
In the scenario, Capstone (Pty) Ltd intends to build a housing

and golf estate. Make a list of the conditions that must form
Activity 2 part of their application for authorisation to commence with
the development.

Your answer should include a list of the minimum, general and specific conditions,
as set out above, since the application for an environmental authorisation will
include an environmental impact assessment. Environmental authorisation may be
refused if the application does not comply with these conditions.
Make a list of the conditions attached to environmental

authorisations that, in your opinion, contribute to IEM. Give
Activity 3 reasons for your answer.

In order to formulate your answer, you had to refer back to 6.1 and 6.2 above, which
describe IEM. You then had to go through all the conditions attached to
environmental authorisations and evaluate which conditions contribute to IEM. The
following are examples of the conditions that you could have identified:
. all the minimum conditions attached to environmental authorisations
. all the general conditions attached to environmental authorisations
. all the specific conditions attached to environmental authorisations
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All these conditions ensure that the environmental consequences of developments
are understood and adequately considered in the decision-making process. These
conditions also ensure compliance with the general objectives of IEM and the
environmental management principles of NEMA.
6.4.5 Criteria to be taken into account by competent

authorities when considering applications for an
environmental authorisation (s 24O)
Section 24O reads as follows:
(1) If the Minister, Minister of Minerals and Energy, an MEC or identified

competent authority considers an application for an environmental
authorisation, the Minister, Minister of Minerals and Energy, MEC or
competent authority must
(a) comply with this Act

(b) take into account all relevant factors, which may include –
(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;
(iii) the ability of the applicant to comply with the prescribed
financial provision;
(iv) where appropriate, any feasible and reasonable alternatives
to the activity that 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 prescribed environmental management frame-
works, to the extent that such information, maps and
frameworks are relevant to the application;
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(vi) information contained in the application form, reports,
comments, representations and other documents submitted
in terms of this Act to the Minister, Minister responsible for
mineral resources, MEC or competent authority in connec-
tion 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;
(viii) any guidelines, departmental policies, and environmental
management instruments that have been adopted in the
prescribed manner by the Minister or MEC, with the
concurrence of the Minister, and any other information in
the possession of the competent authority that are relevant to
the application; and
(c) take into account the comments of any organ of state charged with the
administration of any law which relates to the activity in question.
Indicate how the criteria that must be taken into account by

competent authorities when considering applications for an
Activity 4 environmental authorisation give effect to IEM and the
national environmental management principles.

All these criteria ensure that the environmental consequences of developments are
understood and adequately considered in the decision-making process. These
criteria also ensure compliance with the general objectives of IEM and the
environmental management principles of NEMA, since the competent authority is
compelled to
. comply with NEMA
. consider all relevant factors, such as any pollution or environmental impact likely
to be caused by the application; alternatives, protective measures, preventive
measures, mitigating measures and the ability of the applicant to implement
mitigating measures
. consider all input from any relevant organ of state, all reports and input resulting
from the public participation process
Reread 6.2.1, which sets out the objectives of IEM, and identify the applicable
objectives. On careful reading, you will find that the criteria that must be taken into
account when considering an application for environmental authorisation are all
aimed at achieving the IEM objectives. Remember that an important objective of IEM
163
is to promote the integration of the principles of environmental management set out
in section 2 of NEMA into the making of all decisions that may have a significant
effect on the environment.
6.4.6 Non-compliance
No person may commence a listed or specified activity without an
environmental authorisation (section 24F). Section 24G spells out the
consequences of unlawful commencement of an activity. The competent
authority concerned may, amongst others, direct the applicant to immediately
cease the activity pending a decision on the application; remedy any adverse
effects of the activity on the environment; or eliminate any source of pollution
or degradation. The person who unlawfully commenced with an activity must
pay an administrative fine, which may not exceed R5 million. In instances
where developments commenced without the necessary authorisation
(unlawful commencement), section 24G allows retrospective authorisation.
The submission of such an application, however, shall not interfere with or
preclude an environmental management inspector or the police service from
investigating any transgression or the National Prosecuting Authority from
instituting a criminal prosecution.
From the above it becomes apparent that environmental authorisations and

the attendant environmental impact assessments are important environmental
management tools to ensure compliance with IEM and the national
environmental management principles.
Assume that Capstone (Pty) Ltd gives instructions to its

construction manager to start with excavations for the
Activity 5 foundations of the staff accommodation while its application
for authorisation is being processed by the competent
authority. What are the consequences of the company’s
action?

In order to formulate your answer, you had to consult section 1 of NEMA, which
defines ‘‘commence’’ as ‘‘the start of any physical implementation in furtherance of a
listed activity or specified activity, including site preparation and any other action on
the site or the physical implementation of a plan, policy, programme or process’’.
Capstone (Pty) Ltd has therefore commenced without the necessary authorisation.
The consequences of such action and possible remedies are set out in 6.4.6 above.
Thus far we have dealt with IEM and environmental authorisations. You now
know that environmental authorisation is one of the environmental
164
management tools that are used to give effect to the general objectives of IEM
and the national environmental management principles by ensuring that the
potential consequences for or impacts on the environment of listed or
specified activities are considered, investigated and reported on to the
competent authority. Authorisation is therefore required in instances where
certain activities are likely to be detrimental to the environment. Such
environmental authorisations are granted or refused on the basis of
environmental impact assessments.
6.5 Environmental impact assessment

The rationale for an environmental impact assessment (EIA) is to incorporate
the environmental considerations into decision-making processes in cases
where private or public developments are likely to have significant effects on
the environment, by ensuring that appropriate scientific techniques are
applied to prevent harmful impacts on the environment. Sands (2003:263)
correctly states that an integrated approach requires that environmental
information be collected and disseminated, and that environmental impact
assessments be conducted.
Environmental impact assessments are now an accepted environmental law

tool nationally and internationally. EIAs are carried out 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 (Principle 17 of the Rio
Declaration).
EIAs in general contribute to objectivity and transparency in decision-making,

which counterbalance the potential for abuse. The EIA procedure not only
promotes ordered growth, but also plays a preventive role in decision-making
on land use. Since this procedure provides that decision-makers base their
decisions on environmental information, it ensures that the environment is at
the centre of decision-making. The EIA procedure is further strengthened by
provision for the participation of interested and potentially affected parties.
Principle 10 of the Rio Declaration, which recognises the rights of individual

citizens to participate in decision-making processes and to have access to
information, has become the international benchmark for countries.
Agenda 21 and the Johannesburg Plan call for the genuine involvement of
all social groups and the promotion of public participation. Broad public
participation in decision-making is viewed as a fundamental prerequisite for
the achievement of sustainable development. This coincides with ‘‘one of the
most remarkable trends’’ in the environmental sphere: the growth of more
inclusive, participatory processes involving multiple stakeholders in decision-
making.
In South Africa, the EIA is the environmental management tool that is used in
applications for environmental authorisation. The potential consequences for
or impacts on the environment of listed or specified activities must be
considered, investigated, assessed and reported on to the competent
authority and include the participation of interested and affected parties.
165
A variety of procedures are used to determine the impact of a particular
development on the environment. This results from the fact that different
statutes prescribe different procedures for different situations. The different
statutes are the National Environmental Management Act 107 of 1998 and the
National Heritage Resources Act 25 of 1999. The legislation that is relevant to
this study unit is the National Environmental Management Act and the
Environmental Impact Assessment Regulations 2014, as amended, published
in terms of the Act.
NOTE: The Environmental Impact Assessment Regulations 2014 are not

prescribed and we therefore do not expect you to obtain a copy of
the Regulations. You must nevertheless be familiar with the
contents of this study unit. References to specific regulations are
included, should you wish to consult the Regulations.
6.5.1 The primary purposes of an environmental impact

assessment
What do you think is the purpose of an environmental impact assessment?
The following are some of the primary purposes of an environmental impact

assessment:
. Aiding decision-making by providing objective information on the
environmental consequences of all developmental actions, plans and
projects
. Providing sound, comprehensive data for development planning
. Analysing plans objectively to ensure maximum benefits and to mitigate
the negative effects
. Proposing solutions to problems that may arise through the interactions
between the environment and developmental actions, plans and projects
. Communicating information on the positive and negative effects of
development proposals, both to decision-makers and interested parties
6.5.2 When will an EIA be carried out?

In order to give effect to the general objectives of IEM, the potential
consequences for or impacts on the environment of listed or specified
activities must be considered and assessed. Once the activities have been
identified (i.e. listed or specified), the prescribed procedure for obtaining
authorisation to develop in terms of NEMA, as set out in the Environmental
Impact Assessment Regulations 2014, must be followed. Regulation 2 states
that the purpose of these Regulations is
to regulate the procedure and criteria as contemplated in Chapter 5 of

[NEMA] relating to the preparation, evaluation, submission, processing and
consideration of, and decision on, applications for environmental authorisa-
tions for the commencement of activities, subjected to environmental impact
166
assessment, or where it cannot be avoided, ensure mitigation and manage-
ment of impacts to acceptable levels, and to optimise positive environmental
impacts, and for matters pertaining thereto.
The Environmental Impact Assessment Regulations 2014 provide for the EAP
to determine the assessment process that must be followed (Reg 15). The
regulations make provision for the following assessment processes: a basic
assessment process and a scoping and environmental impact reporting
process (S&EIR).
NOTE: EIA is not defined in NEMA. It is, however, defined in the

Environmental Impact Assessment Regulations 2014. The defini-
tion provided in the Regulations reads as follows: ‘‘[E]nviron-
mental impact assessment, means a systematic process of
identifying, assessing and reporting environmental impacts
associated with an activity and includes basic assessment and
S&EIR’’. In other words, whenever reference is made to EIA in the
Regulations, it includes basic assessment and S&EIR.
6.5.2.1 Basic assessment process

The basic assessment process entails that the environmental outcomes,
impacts and residual risks of a proposed activity are set out in a basic
assessment report.
A basic assessment must be carried out if the authorisation applied for is in

respect of an activity listed in Government Notice 327 (of 7 April 2017 –
Environmental Impact Assessment Regulations Listing Notice 1). A basic
assessment must also be carried out if the authorisation applied for is in
respect of a listed activity in specific identified (listed) geographical areas
as per Government Notice 324 (of April 2017 – Environmental Impact
Assessment Regulations Listing Notice 3). We included some examples from
listing notices 1 and 3 at the end of this study unit, which you must study. The
procedure that must be followed is set out in Regulations 19–20 of the
Environmental Impact Assessment Regulations 2014, as amended.
Do you think that any of the activities of the proposed

development in the scenario is a specified activity?
Activity 6

In order to answer this activity, page back to the scenario and read it again. Then turn
to the addendum at the end of this study unit, which contains some examples of
specified activities.
167
The proposed development of the housing and golf estate will, for example, require
the building of a reservoir and a lodge and will, as a result of the various proposed
buildings and the golf course, cause the clearance of an area of more than 300
square metres of indigenous vegetation. (Remember the land earmarked for the
development is pristine.) If any of these activities are undertaken in a listed
geographical area in terms of section 24(2)(b) and (c), these activities are referred
to as specified activities (Environmental Impact Assessment Regulations Listing
Notice 3). Capstone (Pty) Ltd must therefore establish whether the area earmarked
for the proposed development falls within a listed geographical area, such as a
sensitive area as identified in an environmental management framework or a critical
biodiversity area as identified in a bioregional plan.
1. Basic assessment procedure

In instances where any of the activities listed in Government Notices 327
(7 April 2017 – Environmental Impact Assessment Regulations Listing
Notice 1) and 324 (7 April 2017 – Environmental Impact Assessment
Regulations Listing Notice 3) are involved, the following procedure must be
followed (the procedure is set out in brief; the full procedure is contained in
Regulations 19–20 of the Environmental Impact Assessment Regulations,
2014, as amended):
1 An EAP is appointed.
2 A determination is made as to which one of the lists contains the
proposed activity.
3 If the activity is on any list, some sort of environmental assessment must
be done.
4 If the activity is on list R 544, then a basic assessment is required.
5 Where a basic assessment in terms of Listing Notice 1 is required, the
applicant (the EAP who manages the application on behalf of the
applicant) must submit an application to the competent authority.
6 The EAP must conduct a public participation process, giving notice to all
potential interested and affected parties (including any organ of state that
has jurisdiction in respect of any aspect of the activity) of the application
or proposed application.
7 The EAP must open and maintain a register of interested and affected
parties, which must be submitted to the competent authority.
8. The basic assessment report is compiled.
9. All potential or registered interested and affected parties, including the
competent authority, must comment on the basic assessment report, the
environmental management programme (EMP) and, where applicable,
the closure plan. All comments of interested and affected parties must be
recorded.
10. The above is then submitted to and considered by the competent
authority.
11. A decision is made.
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2 Scoping and environmental impact reporting (SEIR)
process
A scoping and environmental impact reporting process (S&EIR) must be
carried out if the authorisation applied for is in respect of an activity listed in
Government Notice 325 (7 April 2017 – Environmental Impact Assessment
Regulations Listing Notice 2). We included some examples of these activities
at the end of this study unit, which you must study. The activities listed in the
Environmental Impact Assessment Regulations Listing Notice 2 are likely to
have significant impacts that cannot be easily predicted or managed. The
procedure that must be followed is set out in Regulations 21–24 of the
Environmental Impact Assessment Regulations, 2014, as amended.
A scoping report must contain the information that is necessary for a proper
understanding of the nature of issues identified during scoping, indicating all
preferred alternatives, including location alternatives, the scope of the
assessment and the consultation process to be undertaken through the
environmental impact assessment process (Appendix 2, section 2). The
scoping report must include a plan of study for undertaking the environmental
impact assessment process to be undertaken (Appendix 2, section 2(h)).
The environmental impact assessment process must be undertaken in line

with the approved plan of study for the environmental impact assessment. The
environmental impacts, mitigation and closure outcomes and the residual
risks of the proposed activity must be set out in the environmental impact
assessment report (Appendix 3, section 1(1) and (2)).
Do you think that any of the activities of the proposed

development in the scenario is a listed activity? If so,
Activity 7 describe such activity and indicate which process will be
applicable.

In order to answer this activity, page back to the scenario and read it again. Then turn
to the addendum at the end of this study unit, which contains some examples of
listed activities.
The proposed development of the housing and golf estate will result in the physical
alteration of undeveloped, vacant or derelict land for residential, retail, commercial,
recreational, industrial or institutional use, where the total area to be transformed is
20 hectares or more and is listed in the Environmental Impact Assessment
Regulations Listing Notice 2 of 2010. This is referred to as a listed activity (an
activity identified in terms of section 24(2) and 24(D)). Capstone (Pty) Ltd must apply
for an environmental authorisation from the competent authority before the
169
company may commence with the development. The scoping and environmental
impact reporting (S&EIR) process must be carried out as part of the application for
authorisation.
2.1 Scoping and environmental impact reporting (S&EIR)

procedure
In instances where any of the activities listed in Listing Notice 2 are involved,
the following procedure must be followed (the procedure is set out in brief; the
full procedure is contained in Regulations 21–24 of the Environmental Impact
Assessment Regulations, 2014):
1 An EAP is appointed.
2 A determination is made as to which list contains the proposed activity.
3 If the activity is on any list, some sort of environmental assessment must
be done.
4 If the activity is in Listing Notice 2, then a scoping and environmental
impact assessment report (S&EIR) is required.
5 Where an S&EIR in terms of Listing Notice 2 is required, the applicant
(the EAP who manages the application on behalf of the applicant) must
submit an application to the competent authority.
6 The EAP must conduct a public participation process, giving notice to all
potential interested and affected parties (including any organ of state
that has jurisdiction in respect of any aspect of the activity) of the
application or proposed application.
7 The EAP must open and maintain a register of interested and affected
parties, which must be submitted to the competent authority.
8 After having submitted the application, the EAP must
(i) subject the application to scoping by identifying issues that will be
relevant for consideration; the potential environmental impacts; and
alternatives that are feasible and reasonable
(ii) prepare a scoping report
(iii) give all registered interested and affected parties an opportunity to
comment on the scoping report
9 The scoping report is submitted to a competent authority together with

all representations in connection with the application or the scoping
report. The scoping report must include a plan of study for the
environmental impact assessment.
10 The competent authority considers the scoping report. If the report is
accepted, the EAP must proceed with the tasks contemplated in the
plan of study for the environmental impact assessment.
11 The EAP must within 106 days of the acceptance of the scoping report
submit an environmental impact assessment report inclusive of any
170
specialist reports and an EMP, which must have been subjected to a
public participation process. All comments of interested and affected
parties must be recorded.
In terms of section 24I, the Minister or MEC may appoint an external
specialist reviewer and may recover the costs from the applicant in
instances where the technical knowledge required to review any aspect
of an assessment is not readily available within the competent authority
or where a high level of objectivity is required.
12. The above are considered by the competent authority.
13. A decision is made.
Where the application involves two or more activities as part of the same
development and the scoping and environmental impact reporting
process must be applied in respect of any of the activities, the applicable
environmental authorisation process is the scoping and environmental impact
reporting process (Regulation 15(3)).
Indicate how the basic assessment and S&EIR processes

contribute to the achievement of IEM, the national
Activity 8 environmental management principles and the environmental
right

The following is a suggested schematic diagram of all the elements that must be
addressed in your answer:
Environmental right (sustainable development)
:
Environmental management principles
:
Integrated environmental management (IEM)
:
Environmental authorisation
(Environmental management tool to achieve IEM)
:
Environmental impact assessment EIA
(Environmental management tool to achieve IEM)
. Environmental management principles: These include sustainable

development; public participation; intergovernmental coordination; ‘‘polluter
171
pays’’ principle; transparency; access to information; responsibility for the
environmental health and safety consequences of an activity throughout its life
cycle; the environment is held in public trust.
. Integrated environmental management (IEM): This involves integrating the
principles of environmental management with the planning and development
process and identifying, predicting and evaluating the effects that policies,
programmes, proposals or projects may have on the environment by ensuring
thorough consideration of their effects on the environment and public
participation before making a decision; identifying, predicting and evaluating
actual and potential impact on the environment, socio-economic conditions and
cultural heritage; and identifying, predicting and evaluating the risks and
consequences of activities and alternatives and options for mitigation.
. Environmental authorisation: Reread 6.4.2 to 6.4.5 and make a list of the
conditions and criteria that contribute to the achievement of IEM and the
environmental right, namely ongoing management and monitoring of the impacts
of an activity throughout its life cycle; coordination and cooperation between
organs of state; investigation of the potential impacts on the environment;
assessment of the significance of those impacts; public participation;
alternatives to an activity; mitigation measures; reporting gaps in knowledge
and uncertainties, among others.
In brief, the environmental authorisation and the EIA are the environmental
management tools employed to achieve IEM. You will recall that the purpose of
IEM is to promote the application of appropriate environmental management tools to
ensure the integrated environmental management of activities. Section 24 of NEMA
provides, in broad terms, the conditions that must be met and the criteria that must
be taken into account before an application for environmental authorisation is
granted or refused. The basic assessment and S&EIR processes, as provided for in
the Environmental Impact Assessment Regulations 2014, give substance to the Act
by providing greater detail. Indeed, the purpose of the Regulations is to regulate the
procedure and the criteria as contemplated in Chapter 5 of NEMA relating to the
preparation, evaluation, submission, processing and consideration of, and decision
on, applications for environmental authorisations for the commencement of
activities, subjected to environmental impact assessment, to avoid or mitigate
detrimental impacts on the environment and to optimise positive environmental
impacts, and for matters pertaining thereto (Regulation 2).
The following examples can be used to illustrate the contribution of these processes
to the achievement of IEM, the national environmental management principles and
the environmental right:
. a description of the environment that may be affected by the proposed activity
and the manner in which the geographical, physical, biological, social,
economic and cultural aspects of the environment may be affected by the
proposed activity
. details of the public participation process conducted
. a description of any identified alternatives to the proposed activity that are
172
feasible and reasonable, including the advantages and disadvantages that the
proposed activity or alternatives will have on the environment and on the
community that may be affected by the activity
. a description and assessment of the significance of any environmental impacts,
including 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
decommissioning associated with the undertaking of the activity
. any environmental management and mitigation measures proposed by the EAP
. an environmental management programme
. a description of any assumptions, uncertainties and gaps in knowledge
. a description of all environmental issues that were identified during the
environmental impact assessment process, an assessment of the significance
of each issue and an indication of the extent to which the issue could be
addressed by the adoption of mitigation measures
. any specialist reports and reports on specialised processes
The basic assessment and S&EIR processes contribute to the achievement of IEM
by facilitating the following IEM objectives: a thorough, open and transparent
process ensuring public participation in decisions that may affect the environment
and ensuring that the effects of activities on the environment receive adequate
consideration before decisions are taken. These processes identify, predict and
evaluate actual and potential impact on the environment, socioeconomic conditions
and cultural heritage. These processes furthermore identify, predict and evaluate the
risks and consequences of activities and alternatives and options for mitigation.
6.5.3 The decision-making process and thereafter

During the decision-making process, the competent authority must be
satisfied that sufficient information has been provided, proper consultation
has taken place and that the application complies with the requirements for
acceptance and approval.
Conditions may also be set subject to which the activity may be undertaken,
for example conditions determining the requirements for the management,
monitoring and reporting of the impacts of the activity on the environment
throughout the life cycle of the activity, as contained in the approved
environmental management programme. Monitoring and managing the
activity throughout its life cycle is an important component of IEM. There
are several sections in NEMA that regulate this component. A few examples
are listed below:
. Section 24N provides for the submission of an environmental

management programme before considering an application for an
environmental authorisation. For example, an environmental manage-
ment programme must be submitted either where an EIA is used or in
respect of mining activities. In brief, an environmental management
programme must contain information on the proposed management,
173
mitigation, protection or remedial measures that will be undertaken to
address the environmental impacts that have been identified throughout
the life cycle of the activity. Such a programme must make provision for
mechanisms for monitoring compliance and reporting on the compliance.
. Section 24P (‘‘Financial provision for remediation of environmental
damage’’), section 24Q (‘‘Monitoring and performance assessment’’)
and section 24R (‘‘Mine closure on environmental authorisation’’).
Does IEM make provision for monitoring an activity

throughout its life cycle?
Activity 9

The obvious way to answer this question is to refer to the abovementioned sections
(ss 24N, 24P, 24Q and 24R). Hint: In order to formulate a comprehensive answer,
also read through the paragraphs dealing with IEM, minimum and specific
conditions attached to environmental authorisations and the criteria taken into
account by a competent authority when considering an application for an
environmental authorisation.
After a competent authority has reached a decision, the applicant must be

notified of the decision and reasons for the decision must be given. The
applicant must also be informed that an appeal may be lodged against the
decision.
Assume that the application by Capstone (Pty) Ltd for

authorisation to build the housing and golf estate is turned
Activity 10 down. What can Capstone (Pty) Ltd do?

In study unit 4 we discussed section 33 of the Constitution. You will remember that in
terms of section 33, all administrative action must be lawful, reasonable and
procedurally fair. Any decision made concerning environmental and planning
matters and the implementation of the rules and regulations is classified as
administrative action. In other words, the decision by the competent authority in the
scenario to grant or refuse authorisation to Capstone (Pty) Ltd is classified as
administrative action and must therefore comply with section 33 of the Constitution.
174
Reread study unit 4 to refresh your memory of what lawful, reasonable and
procedurally fair action entails. The decision to refuse the authorisation is subject to
the scrutiny of the higher officials/bodies within the department. Capstone (Pty) Ltd
can therefore lodge an appeal against the decision. If the decision by the higher
body is unfavourable, the company is entitled to have its case reviewed by a court. A
competent court may, depending on the facts of the particular case, declare the
decision (action) invalid or unconstitutional, as the case may be.
6.6 Further provisions in chapter 5

You learnt that one of the objectives of integrated environmental management
is to promote the integration of the principles of environmental management
set out in section 2 of NEMA. In an effort to give effect to an important
environmental management principle, namely, that there must be
intergovernmental coordination and harmonisation of policies, legislation
and actions relating to the environment (principle (l), section 2 of NEMA),
Chapter 5 contains further provisions on this aspect.
Sections 24K and 24L are also aimed at improving intergovernmental

coordination. Section 24K provides for consultation between competent
authorities. The Minister or an MEC may consult with any organ of state
responsible for administering the legislation relating to any aspect of an
activity that also requires environmental authorisation under NEMA in order to
coordinate the respective requirements of such legislation and to avoid
duplication. Section 24L provides for the alignment of environmental
authorisations. (Page back to study unit 5, where you learnt about
cooperative environmental governance and the impact it has on
environmental law to refresh your memory of this particular aspect of
cooperative government.)
Section 24M provides for exemptions from the application of certain

provisions of NEMA. In terms of this section, exemption from the provisions
of section 24(4)(a) is not allowed (this section contains the general conditions
of environmental authorisations) or the requirement to obtain an
environmental authorisation contemplated in section 24(2)(a) or (b).
Exemption may be granted only if the granting of the exemption is unlikely
to result in significant detrimental consequences for or impacts on the
environment; the provision cannot be implemented in practice; the exemption
is unlikely to affect the rights of interested or affected parties adversely; or the
activity is of national or provincial importance and is aimed at preventing or
mitigating serious harm to the environment or property.

In summarising study unit 6, we can conclude that IEM promotes the
integration of and compliance with the national environmental management
principles that apply to the actions of all organs of state that may significantly
175
affect the environment. Chapter 5 on IEM further provides for the various
environmental management tools and procedures that facilitate such
integration and compliance. Chapter 5 makes provision for environmental
authorisations. Anyone who plans to engage in certain listed or specified
activities must apply for the necessary environmental authorisation. A further
environmental management tool that is used in the application is an EIA. An
EIA may take the form of a basic assessment or an S&EIR. The EIA is an
important tool in ensuring IEM. Chapter 5 contains further provisions on
conditions attached to environmental authorisations, criteria that must be
taken into account when considering applications for authorisation,
exemptions and penalties for non-compliance. All these provisions are
aimed at giving effect to IEM and, ultimately, realising the environmental right.
In the next and final study unit, you are introduced to measures that aim to
ensure compliance with and enforcement of environmental law.
1. What is integrated environmental management (IEM)? (5)
2. List the objectives of IEM. (10)
3. Describe the role of the environmental assessment practitioner (EAP). (10)
4. List the minimum conditions of environmental authorisations. (3)
5. List the general conditions of environmental authorisations. (5)
6. List the specific conditions of environmental authorisations. (8)
7. What does an environmental management programme provide for? (8)
8. List the criteria that competent authorities must take into account when
considering applications for an environmental authorisation (s 24O) (15)
9. What are the consequences of unlawful commencement of an activity? (7)
10. Set out the primary purposes of an environmental impact assessment (EIA). (5)
11. When will an EIA be carried out? (4)
12. Describe the basic assessment procedure. (11)
13. Describe the scoping and environmental impact reporting (S&EIR) procedure. (13)
14. Discuss the provisions in NEMA for monitoring an activity throughout its life
cycle. (10)
15. A company called Greenbuild (Pty) Ltd wants to construct a facility for the
desalination of sea water for the town of Sedgefield in the Western Cape. It
plans to produce 200 cubic metres of treated water per day. Advise the
company whether an environmental authorisation is required and, if so, outline
the procedure that must be followed. (12)
16. Capstone (Pty) Ltd (the company in the scenario) approaches you for advice
on its application for authorisation to build the proposed housing and golf
estate. The company requires an outline of the procedure that must be followed. (14)
(Hint: Where the application is for two or more activities as part of the same
development and the S&EIR process must be applied in respect of any of the
activities, the applicable environmental authorisation process is the S&EIR
process (Regulation 15(3).)
176
17. Mrs Tshabalala is one of the neighbouring landowners in the scenario where Capstone
(Pty) Ltd intends to build the housing and golf estate. She approaches you for advice on
a number of issues.
17.1 She wants advice on the public participation process because she intends to
object to the proposed development, but is uncertain when to raise her
objections. (2)
(Hint: Read the S&EIR procedure and make a list of the different opportunities
that interested and affected parties have to give their input or raise
objections.)
17.2 Mrs Tshabalala wants to know if the fact that this will be the third development
of this nature in the area will be taken into account during the EIA process. (2)
(Hint: Refer to BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation
and Land Affairs and determine if provision is made for the consideration
of cumulative impacts.)
17.3 Mrs Tshabalala also wants to know if the job creation aspect of the proposed
development will be considered during the EIA process and, if so, why, since
she considers the creation of jobs to be irrelevant to the issue of protecting
the environment. (8)
(Hint: Refer to IEM, the national environmental management principles and the
following cases in this respect: BP Southern Africa (Pty) Ltd v MEC for
Agriculture, Conservation and Land Affairs at 151E and Fuel Retailers
Association of Southern Africa v Director-General Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga
Province and Others , paragraphs 31, 45 and 62. (These two decisions are
available in your e-reserves.)
177
ADDENDUM
A basic assessment must be carried out if the authorisation applied for is in respect of an
activity listed in Government Notice 327 of 7 April 2017 (Environmental Impact Assessment
Regulations Listing Notice 1).
Identification of competent authority:
The competent authority in respect of the activities listed in this part of the Notice is the
competent authority in the province in which the activity is to be undertaken,
Unless –
(a) it is an application for an activity contemplated in section 24C(2) of the Act, in which case
the competent authority is the Minister or an organ of state with delegated powers in terms
of section 42(1) of the Act; or
(b) the listed or specified activity is or is directly related to –
i. prospecting or exploration of a mineral or petroleum resource; or
ii. extraction and primary processing of a mineral or petroleum resource; in which case the
competent authority is the Minister responsible for mineral resources.
The exception mentioned in (b) above does not apply to the following activities contained in this
Notice: 4; 5; 6; 7; 8; 23; 29; 30; 38; 39; 40; 41; 42; 43; 44; and 61.
Environmental Impact Assessment Regulations Listing Notice 1 includes the following

activities: (we include only some examples of activities contained in the list)
Activity 3: The development and related operation of facilities or infrastructure for the
slaughter of animals with a –
(i) product throughput of poultry exceeding 50 poultry per day;
(ii) product throughput of reptiles, game and red meat exceeding 6 units per
day; or
(iii) wet weight product throughput of fish, crustaceans and amphibians
exceeding 20 000 kg per annum.
Activity 8: The development and related operation of hatcheries or agri-industrial facilities
outside industrial complexes where the development footprint covers an area of
2000 square metres or more.
Activity 12: The development of –
(i) dams or weirs, where the dam or weir, including infrastructure and water
surface area, exceeds 100 square metres; or
(ii) infrastructure or structures with a physical footprint of 100 square metres or
more; where such development occurs –
(a) within a watercourse;
(b) in front of a development setback; or
178
(c) if no development setback exists, within 32 metres of a watercourse,
measured from the edge of a watercourse;
excluding –
(aa) the development of infrastructure or structures within existing ports
or harbours that will not increase the development footprint of the
port or harbour;
(bb) where such development activities are related to the development
of a port or harbour, in which case activity 26 in Listing Notice 2 of
2014 applies;
(cc) activities listed in activity 14 in Listing Notice 2 of 2014 or activity
14 in Listing Notice 3 of 2014, in which case that activity applies;
(dd) where such development occurs within an urban area;
(ee) where such development occurs within existing roads, road
reserves or railway line reserves; or
(ff) the development of temporary infrastructure or structures where
such infrastructure or structures will be removed within 6 weeks of
the commencement of development and where indigenous
vegetation will not be cleared.
Activity 14: The development and related operation of facilities or infrastructure, for the
storage, or for the storage and handling, of a dangerous good, where such
storage occurs in containers with a combined capacity of 80 cubic metres or
more but not exceeding 500 cubic metres.
Activity 16: The development and related operation of facilities for the desalination of water
with a design capacity to produce more than 100 cubic metres of treated water
per day.
Activity 20: activity including the operation of that activity which requires a prospecting right
in terms of section 16 of the Mineral and Petroleum Resources Development
Act, 2002 (Act No. 28 of 2002), including –
(a) associated infrastructure, structures and earthworks, directly related to
prospecting of a mineral resource; or
(b) the primary processing of a mineral resource including winning, extraction,
classifying, concentrating, crushing, screening or washing; but excluding
the secondary processing of a mineral resource, including the smelting,
beneficiation, reduction, refining, calcining or gasification of the mineral
resource in which case activity 6 in Listing Notice 2 applies.
Activity 21: Any activity including the operation of that activity which requires a mining
permit in terms of section 27 of the Mineral and Petroleum Resources
Development Act, 2002 (Act No. 28 of 2002), including –
(a) associated infrastructure, structures and earthworks, directly related to the
extraction of a mineral resource; or
classifying, concentrating, crushing, screening or washing; but excluding
the secondary processing of a mineral resource, including the smelting,
beneficiation, reduction, refining, calcining or gasification of the mineral
resource in which case activity 6 in Listing Notice 2 applies.
179
Activity 23: The establishment of cemeteries of 2 500 square metres or more in size.
Activity 27: The clearance of an area of 1 hectares or more, but less than 20 hectares of
indigenous vegetation, except where such clearance of indigenous vegetation
is required for –
(i) the undertaking of a linear activity; or
(ii) maintenance purposes undertaken in accordance with a maintenance
management plan.
Activity 28: Residential, mixed, retail, commercial, industrial or institutional developments
where such land was used for agriculture, game farming, equestrian purposes
or afforestation on or after 01 April 1998 and where such development:
(i) will occur inside an urban area, where the total land to be developed is
bigger than 5 hectares; or
(ii) will occur outside an urban area, where the total land to be developed is
bigger than 1 hectare; excluding where such land has already been
developed for residential, mixed, retail, commercial, industrial or institu-
tional purposes.
Activity 30: Any process or activity identified in terms of section 53(1) of the National
Environmental Management: Biodiversity Act, 10 of 2004.
A scoping and environmental impact reporting (S&EIR) process must be carried out if the
authorisation applied for is in respect of an activity listed in Government Notice 325 of
7 April 2017 (Environmental Impact Assessment Regulations Listing Notice 2).
Identification of competent authority: The competent authority in respect of the activities

listed in this part of the schedule is the competent authority in the province in which the activity
is to be undertaken, unless –
of section 42(1) of the Act; or
Notice: 3; 8(i); 13; 26; 27; and 29.

activities: (we include only some examples of activities contained in the list).
180
Activity 2: The development and related operation of facilities or infrastructure for the
generation of electricity from a non-renewable resource where the electricity
output is 20 megawatts or more.
Activity 3: The development and related operation of facilities or infrastructure for nuclear
reaction including energy generation, the production, enrichment, processing,
reprocessing, storage or disposal of nuclear fuels, radioactive products and
nuclear waste or radioactive waste.
Activity 4: The development and related operation of facilities or infrastructure, for the
storage, or storage and handling of a dangerous good, where such storage
occurs in containers with a combined capacity of more than 500 cubic metres.
Activity 8: The development of –
(i) airports; or
(ii) runways or aircraft landing strips longer than 1,4 kilometres.
Activity 13: 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.
Activity 15: The clearance of an area of 20 hectares or more of indigenous vegetation,
excluding where such clearance of indigenous vegetation is required for –
(i) the undertaking of a linear development activities; or
(ii) maintenance purposes undertaken in accordance with a maintenance
management plan.
Activity 17: Any activity including the operation of that activity which requires a mining right
as contemplated in section 22 of the Mineral and Petroleum Resources
Development Act, 28 of 2002, including –
(a) associated infrastructure, structures and earthworks, directly related to the
extraction of a mineral resource; or
classifying, concentrating, crushing, screening or washing;
but excluding the secondary processing of a mineral resource, including the
smelting, beneficiation, reduction, refining, calcining or gasification of the
mineral resource in which case activity 6 in this Notice applies.
Activity 18: Any activity including the operation of that activity which requires an exploration
right as contemplated in section 79 of the Mineral and Petroleum Resources
Development Act, 28 of 2002, including –
(a) associated infrastructure, structures and earthworks; or.
(b) the primary processing of a petroleum resource including winning,
extraction, classifying, concentrating or water removal; but excluding the
secondary processing of a petroleum resource, including the beneficiation
or refining of gas, oil or petroleum products in which case activity 5 in this
Notice applies.
181
activities in specific identified geographical areas only: (we include only some
examples contained in the list)
A basic assessment must be carried out if the authorisation applied for is in respect of a listed
activity in specific identified geographical areas as per Government Notice 324 of
7 April 2017 (Environmental Impact Assessment Regulations Listing Notice 3)
Identification of competent authority: The competent authority in respect of the activities

listed in this part of the Notice is the competent authority in the province in which the activity is
to be undertaken, unless –
of section 42(1) of the Act;
Notice: 5; 6; 9; 11; 13; 17; 21; 24; 25 and 26.
Activity number and Geographical areas based on environmental attributes

description
Activity 2: (a) Eastern Cape

i. In a protected area identified in terms of NEMPAA, excluding
The development of reser-
conservancies;
voirs, excluding dams, with
iii. Outside urban areas, in:
a capacity of more than 250
cubic metres (aa) National Protected Area Expansion Strategy Focus
areas;
(bb) Sensitive areas as identified in an environmental
management framework as contemplated in Chapter 5
of the Act and as adopted by the competent authority;
(cc) Sites or areas identified in terms of an international
convention;
(dd) Critical biodiversity areas as identified in systematic
biodiversity plans adopted by the competent authority or
in bioregional plans;
(ee) Core areas in biosphere reserves
(ff) Areas within 10 kilometres from national parks or world
heritage sites or 5 kilometres from any other protected
area identified in terms of NEMPAA or from the core area
of a biosphere reserve;
(gg) In an estuarine functional zone, excluding areas falling
behind the development setback line;
(hh) Areas seawards of the development setback line or
within 1 kilometre from the high-water mark of the sea if
no such development setback line is determined; or
iii. Inside urban areas:
(aa) Areas zoned for use as public open space;
(bb) Areas designated for conservation use in Spatial
Development Frameworks adopted by the competent
authority, or zoned for a conservation purpose; or
(cc) Areas seawards of the development setback line or
within urban protected areas
182
description
(b) Free State
i. In a protected area identified in terms of NEMPAA,
excluding conservancies;
ii. Outside urban areas:
(aa) National Protected Area Expansion Strategy Focus
areas;
management framework as contemplated in
Chapter 5 of the Act and as adopted by the
competent authority;
convention;
biodiversity plans adopted by the competent
authority or in bioregional plans;
(ee) Core areas in biosphere reserves; or
(ff) Areas within 10 kilometres from national parks or
world heritage sites or 5 kilometres from any other
protected area identified in terms of NEMPAA or
from the core area of a biosphere reserve; or
D e v e l o p m e n t F ra m e w o r k s a d o p t e d b y t h e
competent authority, or zoned for a conservation
purpose; or
(cc) Areas within urban protected areas.
(c) Gauteng
i. A protected area identified in terms of NEMPAA,
ii. National Protected Area Expansion Strategy Focus
Areas;
iii. Gauteng Protected Area Expansion Priority Areas;
iv. Sites identified as Critical Biodiversity Areas (CBAs) or
Ecological Support Areas (ESAs) in the Gauteng
Conservation Plan or in bioregional plans;
v. Sites identified within threatened ecosystems listed in
terms of the National Environmental Management Act:
Biodiversity Act (Act No. 10 of 2004);
vi. S e n s i t i v e a r e a s i d e n t i f i e d i n a n e n v i r o n m e n t a l
management framework adopted by the relevant
environmental authority;
vii. Sites or areas identified in terms of an international
convention;
viii. Sites managed as protected areas by provincial
authorities, or declared as nature reserves in terms of
the Nature Conservation Ordinance (Ordinance 12 of
1983) or the NEMPAA;
ix. Sites designated as nature reserves in terms of municipal
Spatial Development Frameworks;
x. Sites zoned for conservation use or public open space or
equivalent zoning; or
xi. Important Bird and Biodiversity Areas (IBA).
183
description
(b) KwaZulu-Natal
i. Tr a n s - f r o n t i e r p r o t e c t e d a r e a s m a n a g e d u n d e r
international conventions;
ii. Community Conservation Areas;
iii. Biodiversit y Stewardship Programme Biodiversity
Agreement areas;
iv. World Heritage Sites;
v. In an estuarine functional zone;
vi. In a protected area identified in terms of NEMPAA,
convention;
viii. Critical biodiversity areas as identified in systematic
biodiversity plans adopted by the competent authority
or in bioregional plans;
ix. Core areas in biosphere reserves;
x. Areas designated for conservation use in Spatial
authority, or zoned for a conservation purpose;
xi. Sensitive areas as identified in an environmental
xii. Outside urban areas:
(aa) Areas within 10 kilometres from national parks or
world heritage sites or 5 kilometres from any
terrestrial protected area identified in terms of
NEMPAA or from the core area of a biosphere
reserve; or
(bb) Areas seawards of the development setback line or
within 1 kilometre from the high-water mark of the
sea if no such development setback line is
determined; or
xiii. Inside urban areas:
within 100 metres from the high-water mark of the
determined; or
(cc) Within urban protected areas.
(e) Limpopo
areas;
convention;
184
description
purpose; or
(cc) Areas within urban protected areas.
(f) Mpumalanga
areas;
convention;
from the core area of a biosphere reserve, where
such areas comprise indigenous vegetation; or
(aa) Areas zoned for use as public open space; or
purpose.
(g) Northern Cape

i. In an estuary;
ii. In a protected area identified in terms of NEMPAA,
iii. Outside urban areas:
185
description
areas;
convention;
(ee) Core areas in biosphere reserves;
(gg) Areas seawards of the development setback line or
determined; or
iv. Inside urban areas:
purpose; or
(cc) Areas seawards of the development setback line or
within urban protected areas.
(h) North West
i. World Heritage Sites; core of biosphere reserve; or sites
or areas identified in terms of an international convention;
ii. A protected area including municipal or provincial nature
reserves as contemplated by NEMPAA or other
legislation; or
iii. All Heritage Sites proclaimed in terms of National
Heritage Resources Act, 1999 (Act No. 25 of 1999).
(i) Western Cape
ii. In areas containing indigenous vegetation; or
purpose.
186
description
(i) Outside urban areas:
The development of resorts,
lodges, hotels, tourism or (aa) A protected area identified in terms of NEMPAA,
hospitality facilities that sleep
(bb) National Protected Area Expansion Strategy Focus
15 people or more
areas;
(cc) Sensitive areas as identified in an environmental
(dd) Sites or areas identified in terms of an international
convention;
(ee) Critical biodiversity areas as identified in systematic
(ff) Core areas in biosphere reserves;
(gg) Areas within 10 kilometres from national parks or
from the core area of a biosphere reserve;
determined;
(ii) Areas on the watercourse side of the development
setback line or within 100 metres from the edge of a
watercourse where no such setback line has been
determined;
(jj) An estuarine functional zone, excluding areas falling
behind the development setback line; or
(kk) A watercourse; or
ii. Inside urban areas:
competent authority or zoned for a conservation
purpose.
(d) Free State

(i) Outside urban areas:
(aa) A protected area identified in terms of NEMPAA,
areas;
convention;
187
Activity number and descrip- Geographical areas based on environmental attributes
tion
(hh) Areas within a watercourse or wetland, or within 100
metres of the edge of a watercourse or wetland; or
ii. Inside urban
purpose.
(c) Gauteng
ii. National Protected Area Expansion Strategy Focus
Areas;
iii. Gauteng Protected Area Expansion Priority Areas;
iv. Sites identified as Critical Biodiversity Areas (CBAs) or
Ecological Support Areas (ESAs) in the Gauteng
Conservation Plan or in bioregional plans;
v. Sites identified within threatened ecosystems listed in
terms of the National Environmental Management Act:
Biodiversity Act (Act No. 10 of 2004);
vi. S e n s i t i v e a r e a s i d e n t i f i e d i n a n e n v i r o n m e n t a l
management framework adopted by the relevant
environmental authority;
convention;
viii. Sites identified as high potential agricultural land in terms
of Gauteng Agricultural Potential Atlas;
ix. Important Bird and Biodiversity Area (IBA);
x. Sites managed as protected areas by provincial
authorities, or declared as nature reserves in terms of
the Nature Conservation Ordinance (Ordinance 12 of
1983) or the NEMPAA;
xi. Sites designated as nature reserves in terms of municipal
Spatial Development Frameworks; or
xii. Sites zoned for conservation use or public open space or
equivalent zoning.
(d) KwaZulu-Natal
i. In an estuarine functional zone;
ii. Tr a n s - f r o n t i e r p r o t e c t e d a r e a s m a n a g e d u n d e r
iii. Community Conservation Areas;
188
description
iv. Biodiversit y Stewardship Programme Biodiversity
Agreement areas;
v. A protected area identified in terms of NEMPAA,
vi. Sites or areas identified in terms of an international
convention;
vii. Critical biodiversity areas as identified in systematic
viii. Core areas in biosphere reserves;
ix. World Heritage Sites;
x. Areas designated for conservation use in Spatial
authority or zoned for a conservation purpose;
xi. Sensitive areas as identified in an environmental
xii. Outside urban areas:
(aa) Areas within 10 kilometres from national parks or
world heritage sites or 5 kilometres from any
terrestrial protected area identified in terms of
NEMPAA or from the core area of a biosphere
reserve;
determined; or
(cc) Areas within a watercourse or wetland; or within 100
metres from the edge of a watercourse or wetland;
or
xiii. Inside urban areas:
within 100m from the high-water mark of the sea if
no such development setback line is determined; or
(cc) Areas within 500 metres from terrestrial protected
areas identified in terms of NEMPAA.
(e) Limpopo
i. Outside urban areas:
areas;
convention;
189
description
(hh) Areas within a watercourse; or within 100 metres
from the edge of a watercourse; or
Development Frameworks adopted by the
purpose.
(f) Mpumalanga
i. Outside urban areas:
areas;
convention;
from the core area of a biosphere reserve, where
such areas comprise indigenous vegetation; or
(hh) Areas within a watercourse or wetland, or within 100
metres of a watercourse or wetland; or
Development Frameworks adopted by the
purpose.
(g) Northern Cape

i. In an estuary;
areas;
190
description
convention;
from the core area of a biosphere reserve;
determined; or
(ii) Areas within a watercourse or wetland; or within 100
metres from the edge of a watercourse or wetland; or
purpose.
(h) North West

legislation;
Heritage Resources Act, 1999 (Act No. 25 of 1999);
iv. Critical biodiversity areas as identified in systematic
biodiversity plans adopted by the competent authority;
v. Sensitive areas as identified in an environmental
of the Act and as adopted by the competent authority; or
vi. Areas within a watercourse or wetland, or within 100
metres from the edge of a watercourse or wetland.
(i) Western Cape

i. Inside a protected area identified in terms of NEMPAA;
ii. Outside urban areas;
(aa) Critical biodiversity areas as identified in systematic
authority or in bioregional plans; or
(bb) Within 5km from national parks, world heritage
sites, areas identified in terms of NEMPAA or from
the core area of a biosphere reserve; -excluding the
conversion of existing buildings where the
development footprint will not be increased.
191
description
i. W ithin any critically endangered or endangered
The clearance of an area of 300
ecosystem listed in terms of section 52 of the NEMBA
square metres or more of
or prior to the publication of such a list, within an area that
indigenous vegetation except
has been identified as critically endangered in the
where such clearance of
National Spatial Biodiversity Assessment 2004;
indigenous vegetation is
ii. Within critical biodiversity areas identified in bioregional
required for maintenance
plans;
purposes undertaken in
iii. Within the littoral active zone or 100 metres inland from
accordance with a maintenance
the high-water mark of the sea, whichever distance is the
management plan
greater, excluding where such removal will occur behind
the development setback line on erven in urban areas;
iv. Outside urban areas, within 100 metres inland from an
estuarine functional zone; or
v. On land, where, at the time of the coming into effect of
this Notice or thereafter such land was zoned open
space, conservation or had an equivalent zoning.
(b) Free State

plans;
iii. On land, where, at the time of the coming into effect of
space, conservation or had an equivalent zoning; or
iv. Areas within a watercourse or wetland; or within 100
(c) Gauteng
ii. Within Critical Biodiversity Areas or Ecological Support
Areas identified in the Gauteng Conservation Plan or
bioregional plans; or
(d) KwaZulu-Natal
i. Tr a n s - f r o n t i e r p r o t e c t e d a r e a s m a n a g e d u n d e r
192
description
ii. Community Conservation Areas;
iii. Biodiversit y Stewardship Programme Biodiversity
Agreement areas;
iv. W ithin any critically endangered or endangered
v. Critical biodiversity areas as identified in systematic
vi. Within the littoral active zone or 100 metres inland from
high-water mark of the sea or an estuarine functional
zone, whichever distance is the greater, excluding where
such removal will occur behind the development setback
line on erven in urban areas;
vii. On land, where, at the time of the coming into effect of
space, conservation or had an equivalent zoning;
viii. A protected area identified in terms of NEMPAA,
ix. World Heritage Sites;
x. Sites or areas identified in terms of an international
convention;
xi. Areas designated for conservation use in Spatial
authority or zoned for a conservation purpose;
xii. Sensitive areas as identified in an environmental
xiii. In an estuarine functional zone.
(e) Limpopo
plans; or
(f) Mpumalanga
plans; or
space, conservation or had an equivalent zoning or
proclamation in terms of NEMPAA.
193
description
(g) Northern Cape
plans;
high-water mark of the sea or an estuary, whichever
distance is the greater, excluding where such removal will
occur behind the development setback line on erven in
urban areas; or
iv. On land, where, at the time of the coming into effect of
((h) North West

legislation;
Heritage Resources Act, 1999 (Act No. 25 of 1999);
iv. Critical biodiversity areas as identified in systematic
biodiversity plans adopted by the competent authority;
v. Sensitive areas as identified in an environmental
vi. Areas within a watercourse or wetland, or within 100
(i) Western Cape

plans;
high-water mark of the sea or an estuarine functional
zone, whichever distance is the greater, excluding where
such removal will occur behind the development setback
line on erven in urban areas;
iv. On land, where, at the time of the coming into effect of
space, conservation or had an equivalent zoning; or
v. On land designated for protection or conservation
purposes in an Environmental Management Framework
adopted in the prescribed manner, or a Spatial
Development Framework adopted by the MEC or Minister
194
description
i. Outside urban areas, or
The transformation of land ii. Inside urban areas:
bigger than 1 000 square
(aa) Areas zoned for conservation use or equivalent
metres in size, to residential,
zoning, on or after 02 August 2010;
retail, commercial, industrial or
(bb) A protected area identified in terms of NEMPAA,
institutional use, where, such
excluding conservancies; or
land was zoned open space, (cc) Sensitive areas as identified in an environmental
conservation or had an management framework as contemplated in
equivalent zoning, on or after 02 Chapter 5 of the Act as adopted by the competent
August 2010 authority.
(b) Gauteng
i. All areas.
(c) Limpopo
i. Inside urban areas.
(d) Mpumalanga
i. Inside urban areas; or
ii. A protected area identified in terms of NEMPAA,
excluding conservancies.
(e) North West

i. Inside urban areas; or
ii. Sensitive areas as identified in an environmental
of the Act as adopted by the competent authority.
(f) Western Cape

i. Outside urban areas, or
(aa) Areas zoned for conservation use or equivalent
zoning, on or after 02 August 2010;
(bb) A protected area identified in terms of NEMPAA,
excluding conservancies; or
Chapter 5 of the Act as adopted by the competent
authority.
195
STUDY UNIT
7
Measures and institutions to ensure
compliance with and enforcement of
environmental law
OVERVIEW
In this study unit we elaborate on the measures and mechanisms that are in place to ensure
that relevant ‘‘stakeholders’’ comply with environmental laws. We briefly set out the
enforcement measures provided for in law. This account is essential for gaining an
understanding of the tools (i.e. the measures and mechanisms) that are used to implement
existing environmental laws. In the absence of such tools, environmental management and
protection is unlikely to be effective or meaningful. The most commonly used tools are
criminal measures. Although criminal measures have their strengths, their weaknesses
abound. Other tools that will be explored include administrative measures. In the course of
expounding on administrative measures, particular focus will be placed on the role of
environmental management inspectors (EMIs) in the enforcement of environmental laws. This
examination of the role of the EMIs is essentially an examination of the institution (the
‘‘Environmental Management Inspectorate’’) entrusted with the powers to enforce com-
pliance with environmental laws and what these powers entail. Finally, a few other tools will be
mentioned for the sake of completeness. All these tools are helpful only when they are used
and used effectively. We note, however, that the constraints of, inter alia, insufficient
implementation/enforcement officers and inadequate training make such use limited at
present.

& understand the difference between ‘‘compliance’’ and ‘‘enforcement’’
& explain the various measures or tools that are available for the enforcement of
environmental laws
& describe the role of an institution – the environmental management inspectorate
(the EMI) – in the enforcement of environmental laws
& evaluate the usefulness, advantages and disadvantages of the principal measures
or tools for the enforcement of environmental laws
196
7.1 Introduction
7.1.1 General
In the last six study units we have focused on the theory pertaining to the
management and protection of the environment, as provided for in the
Constitution of the Republic of South Africa, 1996 and the pertinent provisions
of the National Environmental Management Act 107 of 1998, and provided you
with some information on the development of international environmental law
(IEL) and its impact on South African environmental law. Now, in this last study
unit, we will be examining the measures and the institutions that have been
created to ensure compliance with and enforcement of environmental law.
What do you think ‘‘compliance’’ means in this context? In everyday language,

the word ‘‘compliance’’ refers to obedience to rules or requests. A person
who adheres to and/or obeys the rules of a competition or game may be
referred to as complying with the rules of the competition or game. The word
‘‘enforcement’’ commonly refers to ensuring that rules are obeyed.
Compliance and enforcement are evidently related, in that compliance is the
ultimate objective of enforcement. In other words, enforcement seeks to
achieve compliance. Compliance and enforcement are therefore different but
related. Craigie et al (in Paterson & Kotzé (eds) 2009:44) illustrate the
difference and relationship as follows:
While ‘compliance’ denotes a particular state of adherence to a set of legal

requirements or standards, ‘enforcement’ refers to the actions that
governments and others take to achieve compliance within the regulated
community and to correct or halt situations where such compliance is not
present.
In general, once a rule or law has been promulgated, the regulated community
(or part thereof) may comply with the rule or law voluntarily without any action
or persuasion by the regulator. However, it is possible that voluntary
compliance may not be forthcoming, in which case measures may be taken
to persuade or force the regulated community to comply with the rule or law.
The strategies that may be used to achieve compliance on the part of the
regulated community form part of enforcement measures.
The aforementioned authors maintain that the reasons underpinning

compliance and enforcement as a collective term include the following:
. improving environmental quality
. reinforcing the credibility of environmental laws and the institutions
responsible for their administration
. ensuring fairness towards those members of the regulated community
who willingly comply with legal requirements
. reducing costs and liability associated with non-compliance
How do you think environmental laws can be enforced? As stated above,

enforcement measures or mechanisms may be employed to achieve
compliance. Although classifications of enforcement measures or
197
mechanisms may differ according to the views of certain authors, there seem
to be three broad categories of enforcement measures or mechanisms,
namely
. command-and-control mechanisms
. incentive-based mechanisms
. voluntary mechanisms
At first glance, the inclusion of voluntary mechanisms as an enforcement

measure may appear to be an anomaly, since the nature of voluntary
mechanisms suggests either freedom or preference (choice) to engage in
certain conduct or not, whereas the term ‘‘enforcement measure’’ suggests a
degree of compulsion/coercion to engage in certain conduct. This is a
legitimate concern. However, it is necessary to include voluntary mechanisms
in this discussion because, just like command-and-control mechanisms and
incentive-based mechanisms (see below), voluntary mechanisms have the
potential to contribute to environmental protection.
Compare compliance and enforcement and explain the

rationale for regarding compliance and enforcement as a
Activity 1 collective term.

Reread 7.1.1 above and make relevant notes.
7.1.2 Command-and-control mechanisms

The command-and-control mechanisms are essentially tools that contain
‘‘do’s and don’ts’’ (rules of behaviour), backed by measures that seek to
ensure that there is compliance with these ‘‘do’s and don’ts’’. Two processes
are thus involved: in the first place, the rule, legal requirement or obligation
(the command) is prescribed; in the second place, various enforcement
measures are employed in order to compel compliance in instances where
there is non-compliance (control) (Craigie et al in Paterson & Kotzé (eds)
2009:51).
Examples of command-and-control mechanisms in South Africa include the
following:
. criminal measures
. administrative measures
. civil measures
As will be seen below, the greater part of this study unit will be devoted to a
198
discussion of these command-and-control mechanisms. The reason for this is
that command-and-control mechanisms are the most frequently used
enforcement tool in environmental protection efforts in South Africa.
7.1.3 Incentive-based mechanisms

In Paterson and Kotzé ((eds) 2009:298), Paterson describes incentive-based
mechanisms as a ‘‘regulatory tool’’ as follows:
[they are] sitting in the middle of the continuum between state-centred and
industry-centred regulation [and are] incentive-based instruments. These
instruments frequently seek to encourage compliance with state objectives
and standards through motivation and reward, as opposed to direct
regulation. The philosophy underlying these instruments is that it may be
more efficient and effective to reward positive behaviour as opposed to
sanctioning negative behaviour. Incentive-based instruments are not,
however, always positive in nature and can similarly be used to
discourage – effectively penalise – non-compliance with relevant objectives
and standards. Incentives can also be perverse in nature where they actively
encourage the opposite of the desired state objective or standard. [Footnotes
in extract have been omitted.]
Paterson (ibid: fn 9) explains further by quoting Pigou (1920): ‘‘Providing

incentives for people, industry and organisations to internalise the full costs of
their actions (including social and environmental costs) is the solution to
solving the market failure to do so voluntarily.’’ As an example of ‘‘perverse
incentives’’, Paterson refers to a subsidy granted to landowners to clear
natural vegetation and wipe out wetlands with a view to engage in agriculture
and forestry, and states that the destruction of natural vegetation is a threat to
biodiversity conservation. He argues that ‘‘by granting landowners an
incentive to clear land, the state is perversely undermining conservation
objectives’’ (2009:298, fn 10).
There are many types of incentive-based measures. For our current purposes,
we will mention just three of them:
. market-based incentives (fiscal or economic incentives)
. information-based instruments
. regulatory incentives
7.1.4 Voluntary mechanisms

In essence, voluntary mechanisms are various measures that individuals,
industries and organisations take without compulsion (coercion) and which
contribute positively towards environmental protection. The law does not
require these measures to be taken, but individuals (or groups of individuals),
industries and organisations still take them voluntarily (Lehmann in Paterson &
Kotzé (eds) 2009:269). For example, a company (a juristic person) may
pursue measures aimed at reducing its carbon footprint, although, at that
time, there may be no law requiring the company to reduce its carbon
footprint.
199
Examples of voluntary mechanisms include self-regulation and co-regulation
(‘‘negotiated agreements’’).
Self-regulation entails environmental measures taken by individuals, industry

and organisations on their own initiative and without coercion of any kind;
public bodies and civil society are not involved in these measures. On the
other hand, co-regulation (also known as co-regulatory instruments) entails
negotiated agreements between public bodies and industry/business
(Lehmann in Paterson & Kotzé (eds) 2009:283 and further). Now do the
activity that follows to see if you have grasped the concepts.
Identify and explain two broad categories of measures or

tools that are available for the enforcement of environ-
Activity 2 mental laws.

The two broad categories are command-and-control mechanisms and incentive-
based mechanisms. Study 7.1.2 and 7.1.3 above and then summarise the two broad
categories in your own words. Please note that, as explained in 7.1.1 above,
voluntary mechanisms do not easily fit the mould of the standard tools/measures for
environmental enforcement.
Having explained what compliance and enforcement entail in general terms,

we now need to examine in more detail what these measures entail
(particularly the command-and-control mechanisms). This examination will
include a consideration of one particular institution – the Environmental
Management Inspectorate, comprising environmental management
inspectors (EMIs), and the powers and functions entrusted to the EMIs to
ensure compliance with and enforcement of provisions on environmental
management and conservation.
As indicated above, compliance and enforcement in South Africa is

dominated by command-and-control mechanisms. As a result, we have
decided to focus on these mechanisms, since you, as students, as well as
practitioners and any other interested persons, are likely to encounter these
mechanisms more often than the other types. Since the same may be said of
most other countries in the world, we will not discuss any other countries here.
The command-and-control mechanisms that are used in South Africa include
. criminal measures
. administrative measures
. civil measures
We will analyse each of these command-and-control mechanisms, beginning

with criminal measures.
200
7.2 Criminal measures
7.2.1 General
In simple terms, ‘‘criminal measures’’ refer to various measures based on
criminal law that can be undertaken in the interest of compliance and
enforcement. In essence, certain conduct is prohibited and this prohibition is
backed by a threat of punishment in the event of failure to comply with the
prohibition. In most South African legislation, this is the default enforcement
measure. (‘‘Default’’, in this sense, means ‘‘a selected option adopted ...
when no alternative is specified’’ (Compact Oxford English dictionary 2005).)
The criminal measures are sometimes also referred to as ‘‘criminal sanctions’’
or ‘‘the criminal sanction’’.
As you may recall from the Criminal Law subjects you studied earlier in your
studies, the criminal sanction has certain distinct features, which include the
following:
. It attaches stigma to certain forms of conduct.

. It engenders or elicits community condemnation.
. It imposes punishment, including the distinctive punishment of
imprisonment.
Owing to the central role that punishment plays in criminal measures, it is

essential to point out that authors have indicated that punishment may be
justified on the basis of, inter alia, deterrence and retribution. Kidd (in Paterson
& Kotzé (eds) 2009:241–242) explains deterrence and retribution in the
context of environmental protection in the following terms:
Please refer to e-reserves for Kidd M ‘‘Criminal measures’’ in Paterson A and

Kotzé L (eds) Environmental compliance and enforcement in South Africa:
Legal perspectives (2009), 241–242.

The determination of the right timing for the use of the criminal sanction or
other measures calls for a consideration of the strengths and weaknesses of
the criminal sanction.
7.2.2 Strengths and weaknesses of the criminal sanction

Please refer to your e-reserves for Kidd M ‘‘Criminal measures’’ in Paterson A
and Kotzé L (eds) Environmental compliance and enforcement in South Africa:
Legal perspectives (2009), 242–244.

201
NOTE: Since you are in your fourth year of study and have completed the
Criminal Law modules, we assume that you know all about the
elements of South African criminal liability. We will therefore not
include explanations of terms like dolus eventualis or mens rea. If
you are not sure of the meanings of terms like these, please
consult the study materials of your Criminal Law module(s).
The alternatives referred to in Kidd’s excerpt above are actually the other
command-and-control mechanisms (that is, administrative measures and civil
measures), incentive-based mechanisms and voluntary mechanisms. In
essence, the enforcement officials/organs of state must determine whether, in
a particular environmental situation, the criminal sanction should be used in
order to achieve compliance, or whether the other mechanisms would be more
suitable. Kidd’s argument is that, unlike the current state of affairs in which
criminal sanctions are most often used (or at least prescribed) for
environmental compliance and enforcement purposes, consideration should
be given to reserving criminal sanctions for serious cases, as explained above.
Do you think that criminal sanctions should be used in the

enforcement of environmental law? Please provide a full
Activity 3 motivation for your answer.
. Study 7.2.1 and 7.2.2 and identify the advantages and disadvantages of using
criminal sanctions in the context of environmental matters.
. Based on the foregoing, substantiate your answer.
NOTE: There is not necessarily a right or wrong answer to this kind of question; it all
depends on how you justify/substantiate the approach you choose.
7.3 Administrative measures
7.3.1 General
Environmental statutes impose various environmentally relevant powers and
duties on administrative bodies, namely national government departments,
provincial government departments, local government authorities, statutory
and other public bodies – essentially organs of state. (Return to study unit 5 in
202
which we discussed the powers and functions of the national, provincial and
local governments under cooperative governance to refresh your memory of
this particular aspect.)
The successful implementation of such powers and duties is quite often

decisive in achieving environmental law compliance. As will be seen in the
discussion below, the powers and duties placed upon the administrative
bodies are such that they (the administrative bodies) may order persons who
are not complying with their environmental obligations to comply and/or to
remedy any environmental harm they have caused. Such powers and duties
placed upon the administrative bodies are what we refer to as ‘‘administrative
measures’’.
In South Africa, several types of administrative measures are used or are at

least provided for in legislation. They include the following:
. directives
. compliance notices
. abatement notices
. suspension and withdrawal of authorisations
We will analyse each of these administrative measures in turn. Thereafter, we

will consider administrative penalties briefly.
Please note that most types of administrative measures qualify as

‘‘administrative action’’ in terms of the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). For the sake of avoiding
repetition, we will not analyse each administrative measure in the context of
administrative action: that analysis will be undertaken only in respect of one
administrative measure, namely the compliance notice, just to demonstrate
how it works in practice.
7.3.2 Directives
Directives empower an administrative official (an organ of state) to direct a
person (entity) to do or refrain from doing something with a view to securing
compliance with environmental law or achieving environmental protection.
Directives are provided for in several environmental Acts, but for our
purposes, we will discuss the directives provided for in two statutes. These
directives are similar in some respects and different in others. This will
become evident as we discuss the directives provided for under the National
Environmental Management Act 107 of 1998 (NEMA) and the National Water
Act 36 of 1998.
7.3.2.1 Directive under section 28 of NEMA

Although several sections in NEMA make provision for what may qualify as
directives, our focus in this paragraph will be on the directives provided for in
section 28 of NEMA. This section deals with the duty of care and remediation
of environmental damage.
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Section 28(4) of NEMA provides as follows:
The Director-General of the department responsible for mineral resources or
a provincial head of department may, after having given adequate
opportunity to affected persons to inform him or her of their relevant
interests, direct [our emphasis] any person who is causing, has caused or
may cause significant pollution or degradation of the environment to –
(a) cease any activity, operation or undertaking;
(b) investigate, evaluate and assess the impact of specific activities and
report thereon;
(c) commence taking specific measures before a given date;
(d) diligently continue with those measures; and
(e) complete those measures before a specified reasonable date.
If urgent action is necessary for the protection of the environment, the

Director-General or a provincial head of department may issue such directive
and consult and give such opportunity to inform him/her as soon thereafter as
is reasonable.
The source of the ‘‘reasonable measures’’ referred to above is section 28(1) of

NEMA, which states the following:
Every person who causes, has caused or may cause significant pollution or
degradation of the environment must take reasonable measures to prevent
such pollution 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 environment.
Section 28(1) also applies to significant pollution or degradation that occurred

before the commencement of NEMA; that arises or is likely to arise at a
different time from the actual activity that caused the contamination; or that
arises through an act or activity of a person that results in a change to pre-
existing contamination.
The reasonable measures (in terms of subsection (3)) may include measures
to
. investigate, assess and evaluate the impact on the environment

. 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
. cease, modify or control any act, activity or process causing the pollution
or degradation
. contain or prevent the movement of pollutants or the causant of
degradation
. eliminate any source of the pollution or degradation
. remedy the effects of the pollution or degradation
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The persons on whom the obligation to take reasonable measures is imposed
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
. 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.
In Bareki v Gencor 2006 1 SA 432 (T), the court held that the effect of section
28 of NEMA is that an owner or possessor of land on whose land an activity or
process causing pollution has been performed without his knowledge and
consent, prima facie incurs an obligation to take reasonable corrective
measures. In this case there is prima facie an absolute liability, which
precludes not merely the element of fault, but also the element of unlawful
conduct. Section 28(1) and (2) of NEMA therefore creates at least a strict
liability and, in some cases, they may even create an absolute liability. As an
example of absolute liability, the court noted that in terms of the latter part of
section 28(1) of NEMA, even where significant pollution or degradation of the
environment is authorised by law or cannot be reasonably avoided or
stopped, the person who causes, has caused or may cause such pollution or
degradation must take reasonable measures to minimise and rectify such
pollution or degradation of the environment. So, conduct which is not unlawful
because it is authorised by law nevertheless gives rise to a duty to take
reasonable measures, meaning that the liability is absolute. The court
observed that there is no monetary limit to such liability and so the liability
is potentially a very heavy one. Furthermore, no statutory defences are created
by NEMA in favour of the person who has caused the pollution (at 439–441).
Please note that in Bareki v Gencor, the court also decided that the provisions
of section 28 of NEMA are not retrospective and, accordingly, the obligation to
take the reasonable measures does not apply where the acts of pollution and
degradation complained of were caused or began prior to 29 January 1999
(the date of commencement of NEMA). However, this aspect of the court’s
decision was overridden by a subsequent amendment to NEMA, which clearly
states that the provisions of section 28 of NEMA are retrospective. Should a
person fail to comply, or comply inadequately, with a directive under
subsection (4), the Director-General, the Director-General of the department
responsible for mineral resources or the provincial head of department may
take reasonable measures to remedy the situation or apply to a competent
court for appropriate relief. Although the appropriate relief is not detailed (or
explained) in section 28 of NEMA, it is arguable that such appropriate relief
may include a mandatory interdict aimed at compelling compliance with the
directive issued by the Director-General or provincial head of department.
In terms of section 28(8), the Director-General, the Director-General of the

department responsible for mineral resources or the provincial head of
department may recover the costs for undertaking reasonable remedial
measures before such measures are taken. All costs incurred as a result of
undertaking reasonable remedial measures may be recovered from any or all
of the following persons:
205
. any person who is or was responsible for, or who directly or indirectly
contributed to, the pollution or degradation or the potential pollution or
degradation
. 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
. the person in control of the land or any person who has or had a right to
use the land at the time when
– the activity or the process is or was performed or undertaken, or
– the situation came about
. any person who negligently failed to prevent

– the activity or the process being performed or undertaken, or
– the situation from coming about: ‘‘Provided that such person failed to
take the measures required of him or her under subsection (1)’’
If more than one person is liable for the costs of undertaking reasonable
remedial measures, the liability must be apportioned among the persons
concerned according to the degree to which each was responsible for the
harm to the environment resulting from their respective failures to take the
measures (s 28(11) of NEMA).
The costs may also be claimed proportionally from any other person who
benefited from the reasonable remedial measures undertaken. Further, the
costs must be reasonable and may include, without being limited to, labour,
administrative and overhead costs (s 28(9) and (10) of NEMA).
The penalties for this offence include a fine not exceeding R10 million or
imprisonment not exceeding 10 years, or both such fine and such
imprisonment (sections 49A and 49B of NEMA).
It is also an offence to
. unlawfully and intentionally or negligently commit any act or omission that
causes, or is likely to cause, significant pollution or degradation of the
environment
. unlawfully and intentionally or negligently commit any act or omission that
detrimentally affects, or is likely to affect, the environment in a significant
manner
The penalties for these offences are similar to the penalties for failure to
comply with a directive.
Section 28 of NEMA contains an internal mechanism for ensuring that the

Director-General, the Director-General of the department responsible for
mineral resources and the provincial head of department carry out their duty to
issue a directive in appropriate circumstances. This mechanism, in effect,
allows any person to give an appropriate 30 days’ notice to the Director-
General, the Director-General of the department responsible for mineral
206
resources or the provincial head of department and, thereafter, to apply to a
competent court for an order directing the Director-General or the provincial
head of department to issue a directive if the Director-General or provincial
head of department fails to inform such person in writing that he or she has
directed a relevant person to take relevant steps (refer to s 28(12) of NEMA).
In a nutshell: Section 28 of NEMA sets out a duty of care and remediation of

environmental damage. It requires that reasonable measures be undertaken
in the interest of environmental protection. If the relevant person fails to
undertake the reasonable measures, the Director-General or the provincial
head of department is required to issue a directive to that person to take
certain steps. If the person fails to comply (or fails to comply adequately) with
the directive, the Director-General or the provincial head of department may
undertake such reasonable measures and recover the costs of taking such
measures from a number of persons.
The following observations may be made in respect of the section 28 directive:
. The directive is implemented together with the criminal sanction in that

failure to undertake the reasonable measures not only provides a basis for
the issuance of a directive but also constitutes a criminal offence.
. The directive is supported by the criminal sanction in that failure to
comply with a directive constitutes a criminal offence.
Write a short essay on the NEMA section 28 directive and

indicate how useful this directive is in environmental
Activity 4 protection endeavours. Your essay should be supported by
relevant legal authority.

Study 7.3.1, 7.3.2 and 7.3.2.1 above and provide an answer in your own words.
PLEASE NOTE: For this kind of question, you are not allowed to simply rewrite/copy
the contents of the relevant paragraphs of this study unit. Not only
would that constitute plagiarism, but you would also fail to
demonstrate your understanding of the study material.
7.3.2.2 Directive under section 19 of the National Water Act

The National Water Act 36 of 1998 contains several provisions that provide for
directives. For our purposes, we will consider only the directive provided for in
section 19 of the National Water Act. Section 19 makes provision for the
prevention of and remedying of effects of pollution. It requires that certain
207
persons must take all reasonable measures to prevent pollution from
occurring, continuing or recurring. These persons include an owner of land,
a person in control of land or a person 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. The reasonable measures may include measures to
. cease, modify or control any act or process causing the pollution

. comply with any prescribed waste standard or management practice
. contain or prevent the movement of pollutants
. eliminate any source of the pollution
. remedy the effects of the pollution
. remedy the effects of any disturbance to the bed and banks of a
watercourse
Section 19(3) of the Act determines that where the relevant person fails to
undertake the reasonable measures, a catchment management agency may
issue a directive to such person to
. commence taking specific measures before a given date
. diligently continue with those measures
. complete them before a given date
If a person fails to comply (or complies inadequately) with the directive, the
catchment management agency may take the measures it considers
necessary to remedy the situation. The catchment management agency
may recover all costs incurred as a result of taking the reasonable measures
jointly and severally from the following persons:
. any person who is or was responsible for, or who directly or indirectly

contributed to, the pollution or the potential pollution
. the owner of the land at the time when the pollution or the potential for
pollution occurred, or that owner’s successor in title
. the person in control of the land or any person who has a right to use the
land at the time when
– the activity or the process is or was performed or undertaken, or

– the situation came about
. any person who negligently failed to prevent
– the activity or the process being performed or undertaken, or

– the situation from coming about (s 19(4) and (5) of the National
Water Act)
If more than one person is liable, the catchment management agency must, at
the request of any of those persons and after giving the others an opportunity
to be heard, apportion the liability, 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) of the National Water Act).
208
The catchment management agency may also claim from any other person
who, in the opinion of the catchment management agency, benefited from the
reasonable measures undertaken, to the extent of such benefit (s 19(6) of the
National Water Act).
The costs claimed for undertaking the reasonable measures must be

reasonable and may include, without being limited to, labour, administrative
and overhead costs (s 19(7) of the National Water Act).
To demonstrate how a National Water Act section 19 directive operates in

practice, we will look at a case decided by the Witwatersrand Division of the
High Court of South Africa (currently known as the South Gauteng High Court).
In Harmony Gold Mining Co Ltd v Regional Director, Free State Department of

Water Affairs and Forestry and others 4 All SA 366 (W),the applicant owned
land on which it operated a mine. Pieces of land owned by the seventh
respondent and the eighth respondent were in the vicinity. On both these
pieces of land these respondents had mine shafts. Underground water
seeping from the land of the seventh and eighth respondents would, if left
unchecked, reach one or more of the shafts sunk on the applicant’s land, and
cause pollution in the process. The first respondent issued a directive on
15 April 2005 in terms of the provisions of section 19(3) of the National Water
Act, that the applicant and the fifth and sixth respondents share the cost of
removing water from shafts on the land of the seventh and eighth
respondents, and of dealing with it in the manner laid down in the directive.
This was an urgent application, which sought the setting aside of the directive
of 15 April 2005, or at least, its suspension pending further litigation between
the parties. The application was dismissed, the court holding that a situation
existed on the land of the applicant which was likely to cause pollution of a
water resource. That situation arose from the position of the land, downstream
from that of the seventh and eighth respondents, and furthermore from the
applicant’s mining activities on its land, which would result in pollution of any
water which may reach the applicant’s land. In essence, the court upheld the
directive that had been issued against, inter alia, the applicant.
On appeal (refer to Harmony Gold Mining Co Ltd v Regional Director: Free

State, Department Water Affairs and Forestry 2006 5 SA 483 (SCA)) the
Supreme Court of Appeal in essence also upheld the directive by dismissing
the appeal of the mining company. The appellant argued that section 19 of the
National Water Act that deals with the prevention of water pollution, ‘‘does not
require of those persons that they take, or pay for, anti-pollution measures on
another’s land such as the supplementary directive required of [the]
appellant’’ (par 15).
The court did not agree with the argument – that section 19(1) of the National
Water Act prescribes any territorial restriction – and held as follows (par 33):
The legislature intended by the term ‘reasonable measures’ to lay down a
flexible test dependent 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
209
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.
As regards the directive the court held (par 35):

Obviously if preventive measures were carried out on [the] appellant’s land
the cost would be for its account. If it were required that measures be taken
by [the] appellant elsewhere the costs it incurred would, again, be for its
account. The situation we have here is one where the various mines
concerned have been required to join forces in continuing with a dewatering
process already physically under way but insufficiently funded. I cannot see
that it is outside the scope of ‘‘reasonable measures’’ to require this
collaboration and to require the companies concerned to share the expense of
it. That is what the directive in issue demanded and in my view the first
respondent was empowered by s 19(3) (read with s 19(1)) so to demand.
Please note that failure to comply with a directive issued under section 19 of
the National Water Act constitutes an offence. The penalties for this offence
include, on the first conviction, a fine not exceeding R100,000 or
imprisonment for a period not exceeding five years, or both such fine and
such imprisonment and, in the case of a second or subsequent conviction, a
fine not exceeding R200,000 or imprisonment for a period not exceeding ten
years, or both such fine and such imprisonment (s 151 of the National Water
Act as read with section 1 of the Adjustment of Fines Act 101 of 1991).
What are the similarities and differences between a NEMA

section 28 directive and a National Water Act section 19
Activity 5 directive?

. Study 7.3.2.1 and 7.3.2.2 and identify the similarities and differences between a
NEMA section 28 directive and a National Water Act section 19 directive.
An example of a similarity is the fact that failure to comply with a NEMA
section 28 directive amounts to a criminal offence. Similarly, failure to comply
with a National Water Act section 19 directive constitutes a criminal offence.
An example of a difference lies in the different penalties that may be imposed

for the criminal offence of failure to comply with a directive.
. By making a diligent study of 7.3.2.1 and 7.3.2.2, you will be able to discover
more similarities and differences between the two directives under
210
consideration. (One way of answering this question is to draw two columns,
heading them sections 28 and 19, and then tabulating the similarities and
differences between the two directives.)
7.3.3 Compliance notices

7.3.3.1 General
A compliance notice may be described as an order issued by an organ of
state (administrative official) known as an environmental management
inspector (EMI), who typically seeks to force the regulated community to
comply with relevant environmental laws and/or authorisations (licences,
permits, etc).
The most prominent compliance notice system is that provided for under
NEMA. Owing to the significant role that compliance notices are playing in
South Africa these days, they will be discussed in some detail and the
interplay between the work of EMIs and administrative justice/action will be
outlined.
The focus of this discussion is on Part 2 of NEMA (‘‘Application and

enforcement of Act and any specific environmental management Act’’) and in
it we briefly examine the work of the EMIs as inspectors who monitor and
enforce legislation in the course of their duties and as part of their day-to-day
functions.
Part 2 (‘‘Application and enforcement of Act and any specific environmental

management Act’’ – sections 31A-31Q) was inserted into NEMA by section 4
of the National Environment Management Amendment Act 46 of 2003. Minor
amendments were brought about by the National Environmental Laws
Amendment Act 14 of 2009. For example, subsection (1) of section 31A
was substituted to provide that ‘‘this part’’ (i.e. Part 2 of NEMA) is applicable
to the enforcement of NEMA and any ‘‘specific environmental management
Act’’ (the so-called SEMAs).
Previously, various officials (e.g. licensing/permit officers and inspectors)

monitored and enforced a variety of environmental legislation by issuing
permits, licences, directives, abatement notices, and so on (e.g. hunting and
fishing licences, permits to enter game parks and air pollution registration
certificates). These officers were therefore involved in the enforcement of the
relevant laws within the various environmental administrations. An opportunity
for review by a higher administrative authority and, ultimately, judicial review
by the higher courts existed where a person wanted to challenge a decision
made by one of these officials.
However, to enhance compliance and enforcement of environmental

legislation, to streamline monitoring and to promote more effective enforce-
ment within the (environmental) administration, provision has been made for
the appointment (‘‘designation’’) of environmental compliance and enforce-
211
ment officials known as environmental management inspectors (EMIs). (See
section 31B, 31BA, 31BB and 31C of NEMA, entitled ‘‘Designation of
environmental management inspectors by Minister’’, ‘‘Designation of
environmental management inspectors by Minister responsible for water
affairs’’, ‘‘Designation of environmental mineral resource inspectors by
Minister responsible mineral resources’’ and ‘‘Designation of environmental
management inspectors by MEC’’ respectively.)
These trained inspectors, already operational in the national sphere of

government, as well as those still being trained, are to take over the powers
and functions of the previous officials in their respective fields to ensure a
more efficient and effective network of implementation and enforcement
across the field of environmental management and conservation.
In exercising his or her (public) powers or performing his or her (public)

functions, an EMI performs an ‘‘administrative action’’ and has to adhere to
the principles of just administrative action in terms of section 33 of the
Constitution and the provisions of the Promotion of Administrative Justice Act
3 of 2000 (PAJA), since PAJA gives content to the right to just administrative
action.
Who appoints/designates these inspectors?
Activity 6

‘‘Designation of environmental management inspectors by Minister’’
The environmental management inspectors are appointed by the Minister

responsible for environmental matters, the Minister responsible for water affairs,
the Minister responsible for mineral resources and MECs respectively.
The following brief discussion will give you some insight into the work of EMIs,
particularly in cases where they perform administrative action that
necessitates adherence to the right to just administrative action as set out
in section 33 of the Constitution and elaborated upon in PAJA.
7.3.3.2 Nature of the environmental management inspector’s

employment
The description of EMIs falls within the definition of ‘‘organs of state’’, as set
out in section 239 of the Constitution. (Carefully study the provisions of s 239
once again to refresh your memory.) They are also part of the ‘‘public
administration’’ and are thus bound by the provisions of the Constitution
(s 195 – ‘‘Basic values and principles governing public administration’’).
212
Legislation that has already been designated to these inspectors includes
NEMA; the Environment Conservation Act, 73 of 1989; the National Water Act
36 of 1998; the National Environmental Management: Protected Areas Act 57
of 2003; the National Environmental Management: Biodiversity Act 10 of 2004;
the National Environmental Management: Air Quality Act 39 of 2004; the
of 2008; the National Environmental Management: Waste Act 59 of 2008; the
World Heritage Convention Act 49 of 1999; and any regulation or other
subordinate legislation made in terms of any of these Acts.
As organs of state, EMIs act within the public-law relationship and therefore
with state authority. In other words, they act with the authority, powers and
functions vested in them in terms of the law. They are therefore bound by the
Constitution to act within the law and the powers vested in them in terms of
legislation. Persons against whom they act (e.g. individuals, companies,
developers) may be coerced to comply with the law (e.g. through the
suspension of a permit holder’s permit to enforce compliance with permit
prescriptions) but, broadly speaking, they always act in the public interest
(e.g. to protect biodiversity in terms of the national environmental
management system and to ensure effective governance of environmental
affairs).
The action taken (e.g. to suspend a permit) affects the rights of the permit
holder and must therefore be just administrative action (in other words,
administrative justice must prevail). Administrative justice ensures that
administrative action is lawful and reasonable and that fair procedures were
followed. Where rights have been adversely affected, the administrator (EMI)
must provide written reasons for such action (refer to section 33(2) of the
Constitution and section 5 of PAJA).
7.3.3.3 The compliance notice issued by the EMI

An EMI’s powers in terms of issuing compliance notices are set out in section
31L of NEMA (‘‘Power to issue compliance notices’’).
An EMI may issue a compliance notice in the prescribed form and following
prescribed procedures, if there are reasonable grounds for believing that a
person has not complied with a provision of the law for which the EMI has
been designated, or with a term or condition of a permit, authorisation or other
instrument issued in terms of that law.
PLEASE NOTE: Winstanley (Paterson & Kotzé (eds) 2009:234)

describes the purpose of a compliance notice as
follows: ‘‘Unsurprisingly, the purpose of a compliance
notice is to seek to ensure legal compliance by
defaulting [our emphasis] parties.’’
213
If a person fails to comply with a compliance notice, section 31N provides that
the EMI must report such non-compliance to the Minister/MEC. The Minister/
MEC may
. revoke or vary the relevant permit, authorisation ‘‘or other instrument’’ that
is the subject of the compliance notice
. take any necessary steps and recover the costs of doing so from the
person who failed to comply
Before the commencement of the 2009 amending Act (Environmental Laws

Amendment Act 14 of 2009), the Minister/MEC had the discretionary power to
‘‘(c) report the matter to a Director of Public Prosecutions’’. However,
paragraph (c) was deleted by section 20 of the 2009 amending Act.
It is accepted that the compliance notice – in line with the reality that an EMI
performs administrative action as an organ of state – constitutes an
‘‘administrative action’’ and must therefore comply with the principles of just
administrative action as set out in section 33 of the Constitution and PAJA.
PLEASE NOTE: Return to 4.3.2 in study unit 4 to refresh your memory of

the provisions of section 33 of the Constitution (the right
to just administrative action) and the ‘‘animation’’ of the
right through the promulgation of the Promotion of
Administrative Justice Act 3 of 2000 with regard to
environmental matters.
In cases of non-compliance with environmental legislation,

how do inspectors enforce the law?
Activity 7

An EMI may issue a compliance notice in the prescribed form and following
prescribed procedures, if there are reasonable grounds for believing that a person
has not complied with a provision of the law for which the EMI has been designated,
or with a term or condition of a permit, authorisation or other instrument issued in
terms of that law.
TO SUM UP:
EMIs are administrators (organs of state) and are performing an administra-
tive action when they issue a compliance notice, for example. In this capacity,
EMIs act within the public-law relationship characterised by their state
authority. EMIs form part of the public administration responsible for
214
environmental affairs. EMIs must act impartially and efficiently and must be
transparent, responsive and accountable in executing administrative action.
Inspectors must ensure that environmental law rules are obeyed, and that
sanctions are properly applied to punish perpetrators. (When exercising their
functions, the inspectors must follow the rules and conduct themselves in
compliance with the prescripts of the Constitution and PAJA to ensure that the
right to just administrative action is upheld.)
7.3.3.4 Control of the EMIs

In executing these actions, EMIs must act in a lawful manner in compliance
with their constitutional obligations. An aggrieved person has the opportunity
to appeal to a higher authority or the courts for redress in cases of defective
(unlawful) administrative action by the EMIs.
& Internal review of administrative action

First of all, the public administration must be given the opportunity to correct
its own defective (invalid/unlawful) administrative action. This forms part of
day-to-day administration and is usually provided for in legislation (e.g. s 43 of
NEMA).
Secondly, during internal administrative review by the higher authority (the

Minister or MEC), an alleged defective action is tested (i.e. reviewed in detail)
and corrected (e.g. amended, set aside or withdrawn) and the aggrieved
person is presented with a remedy (e.g. reinstatement of a suspended permit
or payment of compensation). The EMI who acted unlawfully is usually
subjected to internal departmental forms of discipline.
& Judicial review of administrative action

Thirdly, as a rule, the courts are reluctant to interfere in the functioning of the
public administration or the application of public policy. The general rule is
that internal (domestic) remedies must be exhausted before the aggrieved
person approaches the court – a precondition before a court of law is
approached. However, exceptions do exist (e.g. in the case of a mala fide
EMI).
Another precondition is that the particular person has to have the necessary
locus standi (legal standing) to approach a court of law. (Refer to study unit 4,
under 4.2.4: ‘‘Who may enforce the environmental right?: The matter of legal
standing [locus standi]’’.)
The grounds of judicial review of administrative action are now mainly codified
in PAJA and cover a wide range of grounds relating to decision-making and
the authority of the decision-maker (the administrator, the EMI in our
discussion), the decision itself and the impact of the decision – section 6 of
PAJA. The grounds of review of administrative action include unauthorised
action (e.g. unauthorised delegation or bias); failure to comply with mandatory
and material procedures or conditions prescribed by the empowering
provision; procedurally unfair administrative action; failure to take a
decision; and unlawfulness generally.
215
Section 7 of PAJA deals with the ‘‘procedure for judicial review’’ and section 8
relates to the ‘‘remedies in proceedings for judicial review’’ (the orders that a
court makes, should an applicant be successful in the review application).
What remedies/redress would be available to a person

against whom an inspector has acted unlawfully?
Activity 8
An aggrieved person has the opportunity to appeal to a higher authority or apply for
judicial review by the courts.
7.3.4 Abatement notices
7.3.4.1 General
Certain statutes give power to an administrative official or some organ of state

to order a member of the regulated community to do something in order to
abate (stop or halt) a nuisance, pollution or some other situation that is
problematic. Such an order is referred to as an abatement notice. According
to Winstanley (in Paterson & Kotzé (eds) 2009:236), notices of this nature
apply in more specific circumstances than the directives discussed above.
The author adds (2009:236–237):
The category of competent authorities empowered to issue them is ordinarily

small, and the remedies that may be prescribed are often very specific. As a
result, abatement notices will only be useful tools for achieving compliance
in particular cases, and the value of many of them may have been superseded
by the broad directive powers contained in NEMA and the NWA.
We will now discuss two examples of abatement notices: one under the
National Forests Act 84 of 1998 and the other under the Health Act 63 of 1977.
7.3.4.2 Abatement notice under section 4 of the National Forests Act

Section 4 of the National Forests Act makes provision for the promotion and
enforcement of sustainable forest management. It empowers the Minister to
establish criteria for determining whether forests are being managed sus-
tainably; indicators that may be used to measure the state of forest manage-
ment; and appropriate standards in relation to the indicators. The Minister is
required to identify clearly where the breach of a standard may be an offence.
216
In this regard, section 4(8) of the National Forests Act states that where the
breach of a particular standard may be an offence, a forest officer may inform
an owner who is in breach of that standard by written notice of
. the nature of the breach

. the steps that the owner must take to remedy the breach
. the period within which he or she must do so
The period laid down in the notice may be extended by the Minister for good
reason (s 4(1) of the National Forests Act).
In terms of section 61 of the National Forests Act, it is an offence for any

person to fail to take the steps that he or she has been instructed to take in
terms of section 4(8) within the period, or the extended period, laid down. The
penalties for this include a fine of up to R50,000. Such offender may not be
sentenced to imprisonment. Although section 58(7) of the National Forests
Act states that the maximum amount of the fine (R50,000) may be amended
by the Minister by a notice in the Gazette in order to counteract inflation, this
level of fine suggests that the legislator did/does not consider non-
compliance with an abatement notice to be a serious transgression of the
law. It is questionable whether this implied categorisation of non-compliance
with an abatement notice (ie its non-serious nature) is justifiable.
7.3.4.3 Abatement notice under section 27 of the Health Act

Section 27 of the Health Act states that where, in the opinion of a local
authority, a condition has arisen in its district which is of such a nature as to be
offensive or a danger to health unless immediately remedied, it may serve a
written notice on the person responsible for such condition having arisen or on
the occupier or owner of the dwelling in which or premises on which such
condition exists, calling upon him/her to remedy the condition within such
period as may be specified in such notice.
If the person on whom the notice is served fails to comply with it, the local
authority may enter the dwelling or premises in question and take all such
steps as may be necessary to remedy the condition, and may recover the cost
of so doing from the person on whom the notice was served or from the owner
or occupier of the dwelling or premises in question.
Failure to comply with any such notice constitutes a criminal offence and the
penalties for this offence include a maximum fine ranging from R10,000 to
R40,000, and a maximum period of imprisonment ranging from 6 months to
2 years, depending on whether the offence is a first, second, third or sub-
sequent conviction (sections 27(2) and 57 of the Health Act).
It is apparent from the discussion above that the abatement notices under
both the National Forests Act and the Health Act are supported by the criminal
sanction, in that failure to comply with any of them constitutes a criminal
offence. In essence, the threat of criminal sanction would ideally encourage
the regulated community to comply with the abatement notices.
217
7.3.5 Suspension or withdrawal of authorisations
7.3.5.1 General
The term ‘‘authorisation’’, as used in this study unit, refers to all kinds of
permits, licences, approvals, consents, et cetera and includes the
‘‘environmental authorisation’’ issued in terms of section 24 of NEMA. So
‘‘authorisation’’ is used here in a more general sense than the ‘‘environmental
authorisation’’ issued in terms of section 24 of NEMA.
Another administrative measure that may be used to secure compliance is

administrative suspension or cancellation of authorisations. Administrative
bodies may be given discretion to suspend or cancel authorisations, usually
where the holders of the authorisations have failed to comply with the terms of
the authorisations. The threat of suspension or cancellation arguably provides
an incentive to operate within the confines of the terms of the authorisations.
It is essential that, before exercising such suspension or withdrawal powers,

the administrator adhere to all prescribed procedural and other requirements.
Failure to adhere to such requirements may provide grounds for challenging
the suspension or withdrawal. Where there are no specific procedural
requirements for the specific authorisation’s suspension or withdrawal, it is
arguably necessary to comply with the requirements set out in PAJA.
Kidd (2002:36) contends that where an activity continues after an

authorisation has been withdrawn, there may be a need to apply to court for
an interdict, with a view to bringing the activity to a halt.
An example of a suspension of an authorisation is the suspension of an

environmental authorisation issued in terms of NEMA. The procedure is set
out in the Environmental Impact Assessment Regulations 2014 (hereafter EIA
Regulations 2014 as amended). With regard to withdrawal, we will look at the
Marine Living Resources Act 18 of 1998.
7.3.5.2 Suspension of an environmental authorisation under NEMA

Regulation 38 of the EIA Regulations 2014 as amended provides that if the
competent authority has reason to believe that an authorisation was obtained
through fraud, non-disclosure or misrepresentation of a material fact, the
competent authority may suspend, with immediate effect, the authorisation
and direct the holder to cease any activities that have been commenced or
refrain from commencing any activities, pending a decision to withdraw the
authorisation. The holder of the environmental authorisation may, within ten
days of the suspension, provide the competent authority with representations
as to why the authorisation should not be withdrawn.
7.3.5.3 Withdrawal of an authorisation

Section 28 of the Marine Living Resources Act provides that if a holder of any
right, licence or permit issued in terms of the Marine Living Resources Act
enages in certain conduct, for example contravention of or failure to comply
218
with a condition imposed on the right, licence or permit, the Director-General
may, by written notice to such holder, request the holder to show cause in
writing, within a period of 21 days from the date of the notice, why the right,
licence or permit should not, inter alia, be revoked or cancelled. After expiry of
the 21-day period, the Director-General may refer the matter, together with any
reason provided by the holder in question, to the Minister for the Minister’s
decision. When the matter is referred to the Minister, the Minister may, inter
alia, revoke the right, licence or permit.
Please note that section 28 of the Marine Living Resources Act also caters for
the suspension of the authorisation, but we only dealt with withdrawal here
because an example of suspension is discussed in 7.3.5.2.
7.3.6 Administrative penalties

Administrative penalties are fines that are imposed by the regulator on the
regulated community as some form of sanction against engaging in
prohibited conduct. A distinguishing feature of the administrative penalty is
that it is not imposed by a court of law, but rather by the administrator.
Kidd (2002:39) contends that the use of an administrative penalty may violate
constitutional provisions. He suggests that the administrative penalty will
withstand constitutional scrutiny if the infringement is minor and the
administrative penalty small. He further suggests that the right to appeal
may mitigate this shortcoming/flaw.
An example of an administrative penalty is the administrative penalty provided

for by section 24G of NEMA. In terms of NEMA, it is prohibited to commence
certain listed activities without environmental authorisation. Where a person
commences such a listed activity without environmental authorisation, he or
she may apply for the rectification of the unlawful commencement of the listed
activity. The process of rectification involves, inter alia, the submission of
information and various reports to the Minister, the Minister responsible for
mineral resources or the MEC. Before the Minister or the MEC considers the
information and reports, the applicant must pay an administrative fine not
exceeding R5 million. The amount of the administrative fine applicable to a
particular application is determined by the relevant competent authority.
7.3.7 Advantages and disadvantages of administrative

measures
The advantages of administrative measures include the following:
. A lower standard of proof is required for administrative measures than that

required in criminal law.
. Administrative measures are cheaper to administer (implement) than
criminal measures.
. They are potentially more efficient than other command-and-control
mechanisms (Kidd 2002:33).
219
We will now focus very briefly on civil measures as the last command-and-
control mechanism to be analysed in this study unit.
7.4 Civil measures

7.4.1 General
In the context of this study unit, ‘‘civil measures’’ refers to common-law
measures aimed at compliance and enforcement. Long before the principal
environmental legislation had been passed, the common law was instrumental
in curbing pollution. This was primarily undertaken through the law of delict
and neighbour law. The latter body of law is closely associated with the law of
nuisance. Nowadays, the common law may be employed by individuals and/
or administrative bodies in enforcing environmental protection efforts. Civil
litigation based on the common law may also bring to the fore issues that
should be solved by legislation. In addition, it may serve a publicity function –
refer to, for example, Rabie ‘‘Legal remedies for environmental protection’’
CILSA (1972) 247 at 254.
In civil litigation, a court may make three important orders:

. an order for payment of money (damages/compensation)
. an order compelling or interdicting the performance of an act
. a declaration as to the legal rights of the parties
(In this regard, refer to Loots ‘‘Making environmental law effective’’ (1994) 1
SAJELP 17 at 27.)
7.4.2 Damages (compensation)

The value to society of a compensatory/damages judgment lies in the fact that
it renders pollution expensive, and by this means economically motivates
polluters and potential polluters to refrain from such activities. However,
compensation has serious limitations in the environmental sphere.
Compensation is often difficult to measure. In addition, pollution damage is
difficult to attribute to a particular defendant and is often diffuse. Further,
compensation does not prevent the continuation of the harmful practice, and
so it may be imperative to complement the compensation with an interdict
restraining the continuance of the polluting activity (Rabie 1972:259).
7.4.3 Interdict
An interdict is a double-edged sword: it has the potential to compel
administrative bodies and officials to comply with their environmentally
relevant statutory duties. At the same time, it may serve the interests of
administrative bodies and officials in compelling persons to comply with
environmental law generally. (Refer to, for example, Harms in Joubert (ed)
2001:390.)
An interdict is nonetheless a very useful tool with regard to the preventive and
precautionary principles of environmental law. It has several advantages:
220
. An interdict can be obtained within hours if the matter at hand is
sufficiently urgent.
. It is easier to prove the need for an injunction than for a criminal sanction,
since the burden of proof is the preponderance of probabilities and not
proof beyond reasonable doubt.
. The applicant may recover the costs of the application if the application is
successful. However, the interdict does not carry the same stigma that a
criminal sanction carries, especially in the case of serious environmental
wrongdoing.

In this study unit we attempted to elaborate briefly on the various measures or
tools that regulators may use in ensuring compliance with and enforcement of
environmental provisions relating to environmental management and
conservation. All these tools are only helpful when they are used and used
effectively. It is unfortunate that the government currently lacks the capacity to
implement environmental laws properly and effectively; there are too few
government officers available to undertake the formidable task of ensuring
implementation and enforcement. Added to this is the absence of adequate
environmental law training on the part of regulatory officials/organs of state
and judicial officers. These difficulties limit the use of the various enforcement
tools/environmental protection measures.
Postscript: A brief survey of other environmental statutes

In this postscript we briefly refer you to other environmental statutes in South
Africa. This concise account will help you to gain a basic knowledge of other
environmental legislation in South Africa (over and above the emphasis
placed on the Constitution and NEMA in the study guide).
Clients generally request various types of advice from their lawyers in

environmental matters. In South Africa, examples of advice requested by
clients include advice on liability issues and advice on applicable permits. A
lawyer needs to be aware of the relevant legislation, hence the importance of
this succinct overview. Nevertheless, given that environmental law is an
elective subject, it would be inappropriate to provide a lengthy discussion of
this legislation.
After working through this brief overview, you should

. be aware of the variety of environmental legislation
. be able to explain the nature and the scope of application of the principal
environmental statutes mentioned in this overview briefly
1. General
It has been said that the mark of a good lawyer is in knowing where to find the
relevant law. In the current context, this might entail a situation where a client
asks a lawyer to advise him or her on various issues relating to environmental
221
law. A good lawyer would have an idea of which statutes would be applicable
and would then consult these statutes, determine their relevance and advise
the client accordingly.
In this regard, you may recall from Study Unit 2 that the sources of
environmental law include statutes (legislation). Statutory law in South Africa
is split across the three spheres of government: national, provincial and local.
Hence there is national legislation, provincial legislation and local government
legislation. Owing to the extent of this legislation, it is impossible to discuss all
national, provincial and local legislation relevant to the environment at length.
We will therefore provide only a list of the most important national
environmental legislation, accompanied by a brief reference to the nature of
those Acts we regard as principal environmental legislation.
2. Nature of the most important environmental legislation

South Africa’s principal environmental statutes contain broad principles of law
that essentially apply to the whole nation. Some of them have an effect outside
South Africa too. The National Environmental Management: Biodiversity Act
10 of 2004 states that ‘‘the filing of any complete intellectual property
application, whether in South Africa or elsewhere’’ in relation to indigenous
resources from South Africa will constitute what is known as commercialisa-
tion in terms of that Act. It is arguable from this provision that the filing of the
application outside South Africa will apply to a foreign Act.
At the apex of the environmental statutes in South Africa is the National

Environmental Management Act, which was dealt with in considerable detail in
earlier study units. As indicated in those study units, NEMA is the framework
legislation that provides for a general outline of environmental law in the
country.
Many of the environmental statutes are media-specific or issue-specific, that

is, they tend to regulate particular environmental media or issues, for example
water, air or waste. Some of these environmental statutes are referred to as
specific environmental management Acts in NEMA and other statutes. (The
acronym SEMA is used to refer to these Acts.) In general, when designating
environmental management inspectors, the relevant government authorities
specify which of these statutes are designated for implementation by a
particular environmental management inspector.
PLEASE NOTE: The environmental statutes are not necessarily stand-

alone; they are part of a modern system of
environmental law that is geared towards achieving
environmental management and protection in South
Africa. In certain respects, these statutes are expressly
interlinked and it is not uncommon for one statute to
refer to another. For instance, NEMA states that certain
activities that are primarily regulated by the National
Environmental Management: Air Quality Act 39 of 2004
must be environmentally authorised under NEMA (that
is, they require an environmental authorisation issued in
terms of NEMA).
222
We need to explain exactly how this way of interlinkage works. Among other
things, section 1 of NEMA states that ‘‘this Act’’ (i.e. NEMA) includes the
‘‘schedules, and regulations and any notice issued under the Act.’’ Therefore,
when we referred to NEMA in our example, we were actually referring to Listing
Notice 2 under NEMA. Under the Environmental Impact Assessment
Regulations of 2014, Listing Notice 2, the following two listed activities
require an environmental authorisation:
Activity 6: The development of facilities or infrastructure for any process or

activity which requires a permit or license in terms of national or provincial
legislation governing the generation or release of emissions, pollution or
effluent, excluding –
(i) ...;
(ii) activities which are included in the list of waste management activities
published in terms of section 19 of the National Environmental
Management: Waste Act, 2008 (Act No. 59 of 2008) in which case
that Act will apply; or
(iii) ...;
(iv) ... .
Activity 26: Commencing of an activity, which requires an atmospheric

emission license in terms of section 21 of the National Environmental
Management: Air Quality Act, 2004 (Act No. 39 of 2004), excluding –
(i) ...;
(ii) activities which are included in the list of waste management activities
published in terms of section 19 of the National Environmental
Management: Waste Act, 2008 (Act No. 59 of 2008) in which case
the National Environmental Management: Waste Act, 2008 applies; or
(iii) ... .
So, if an activity requires an atmospheric emission licence in terms of the

National Environmental Management: Air Quality Act 39 of 2004, it is
necessary to obtain an environmental authorisation in terms of NEMA
(i.e. s 24, entitled ‘‘Environmental authorisations’’.
Roadworks Limited is a company that manufactures road-sur

facing materials, for example asphalt, in an industrial suburb
Activity 9 of Tshwane, South Africa. In the process of making the road-
surfacing materials, toxic fumes, are generated. The fumes
are causing lung diseases in the residents of Pax Manor, a
residential suburb near the company’s factory. Further, it has
been established that the company is operating in breach of
the conditions of its atmospheric emission licence. The
mayor of the City of Tshwane has requested you, as a legal
adviser, to provide advice on what measures can be taken
against Roadworks Limited in the interests of public health
and environmental protection.
223
You have to analyse the various tools that can be used to achieve compliance with
environmental laws and to apply such analysis to the facts set out regarding
Roadworks Limited’s actions. For our purposes, the most relevant tools are the
command-and-control mechanisms, specifically administrative measures and civil
measures. The following administrative measures would be applicable: the directive
under section 28 of NEMA; a compliance notice; an abatement notice under section
27 of the Health Act; and the suspension of an environmental authorisation under
NEMA. An interdict (a civil measure) can also be used. The various administrative
measures and civil remedies may be discussed and analysed and the best then
selected for recommendation to the mayor of Tshwane and the aggrieved people in
the scenario. Criminal sanctions may also be considered, albeit briefly.
3. Concluding remarks
South Africa has a wealth of environmental laws. It is essential for the
regulated community to understand the obligations that arise from these laws
in order to put in place relevant compliance strategies. Lawyers have to be
familiar with these laws so that they are able to provide accurate advice to
their clients or anyone who requests their advice. Although we have referred
you to only a limited number of principal national statutes in South Africa in
this postscript, bear in mind that there are many more environmental laws that
must be complied with. Every time an activity is proposed or undertaken
relating to the environment, an assessment must be made so as to determine
which environmental laws apply.
You have now reached the end of this module. We hope you found the
material interesting and stimulating.
1. Distinguish between ‘‘compliance’’ and ‘‘enforcement’’. (3)
2. List the three broad enforcement measures. (3)
3. Describe incentive-based mechanisms and give three examples of these
mechanisms. (8)
4. Describe voluntary mechanisms and give two examples of these mechanisms. (5)
5. Explain deterrence and retribution in the context of environmental protection. (8)
6. List the strengths and weaknesses of the criminal sanction. (10)
7. List the administrative measures used in environmental protection. (5)
8. Discuss the directive under section 28 of NEMA. (15)
9. Discuss the directive under section 19 of the National Water Act. (15)
10. When can an environmental management inspector issue a compliance notice? (4)
11. What happens if a person fails to comply with a compliance notice? (2)
12. Discuss an abatement notice under section 4 of the National Forests Act. (7)
13. Discuss an abatement notice under section 27 of the Health Act. (7)
224
14. What are the advantages and disadvantages of administrative measures? (3)
15. What are the advantages of an interdict? (4)
225
BIBLIOGRAPHY
BOOKS (AND CHAPTERS IN BOOKS)
Baxter L Administrative law (1984) Juta Cape Town

Bell S & McGillivray D Environmental law 6 ed (2006) Oxford University Press
Oxford
Burns Y & Beukes M Administrative law under the 1996 Constitution 3 ed
(2006) LexisNexis Butterworths Durban
Craigie F, Snijman P & Fourie M ‘‘Environmental compliance and enforcement
institutions’’ in Paterson A & Kotze LJ (eds) Environmental compliance
and enforcement in South Africa: Legal perspectives (2009) Juta Cape
Town
Dugard J International law: A South African perspective (2011) Juta Cape Town
Du Plessis A ‘‘Understanding the legal context’’ in Paterson A & Kotze LJ (eds)
Environmental compliance and enforcement in South Africa: Legal
perspectives (2009) Juta Cape Town
Du Plessis LM Re-interpretation of statutes (2002) LexisNexis Butterworths
Durban
Fuggle RF & Rabie MA Environmental management in South Africa 1 ed (1992)
Juta Cape Town
Glazewski J Environmental law in South Africa (2013) LexisNexis Butterworths
Durban
Guruswamy L International environmental law 3 ed (2007) Thomson West St
Paul (USA)
Harms L ‘‘Interdict’’ in Joubert (ed) The law of South Africa (LAWSA) volume 11
(2001) LexisNexis Butterworths Durban
Hoexter C Administrative law in South Africa (2007) Juta Cape Town
Humby T, Kotzé L, Rumble O & Gilder A (eds) Climate Change Law and
Governance in South Africa (2016) Juta Cape Town
Kidd M ‘‘Criminal measures’’ in Paterson A & Kotzé LJ (eds) Environmental
compliance and enforcement in South Africa: Legal perspectives (2009)
Juta Cape Town
Kidd M Environmental law (2011) Juta Cape Town
Kotzé LJ ‘‘Environmental governance’’ in Paterson A & Kotze LJ (eds)
226
Lehmann K ‘‘Voluntary compliance’’ in Paterson A & Kotzé LJ (eds)
perspectives (2009) Juta Capa Town
Paterson A ‘‘Incentive-based measures’’ in Paterson A & Kotzé LJ (eds)
Rabie MA South African environmental legislation (1976) IFCOL Publications
Pretoria
Roederer C ‘‘Founding provisions’’ in Woolman S, Bishop M & Brickhill J (eds)
Constitutional law of South Africa (CLOSA) (2005) 13 Juta Cape Town
Sands P Principles of international environmental law 2 ed (2003) Cambridge
University Press (CUP) Cambridge
Strydom HA & King ND (eds) Fuggle and Rabie’s environmental management
in South Africa 2 ed (2009) Juta Cape Town
Van der Linde M & Basson E ‘‘Environment’’ in Woolman S, Biship M &
Brickhill J et al (eds) Constitutional law of South Africa (CLOSA) (2010) 50
Juta Cape Town
Van der Meijden D Milieurecht in de praktijk 6 ed (2008) Noordhoff Groningen/
Houten
Winstanley T ‘‘Administrative measures’’ in Paterson A & Kotzé LJ (eds)
ARTICLES IN LAW JOURNALS
Brown Weiss E ‘‘The planetary trust: Conservation and intergenerational

equity’’ 1984 (11) Ecology Law Quarterly 495
Brown Weiss E ‘‘Our rights and obligations to future generations for the
environment’’ 1990 84 AJIL 198
Cowen DV ‘‘Toward distinctive principles of South African environmental law:
Some jurisprudential perspectives and a role for legislation’’ 1989 52
THRHR 3
Du Plessis W ‘‘Legal mechanisms for cooperative governance in South Africa:
Successes and failures’’ 2008 SAPR/PL87110
Field T ‘‘Sustainable devolvement versus environmentalism: competing
paradigms for the South African EIA regime’’ 2006 SALJ (123) 409
Glazewski J ‘‘The environment and the new interim Constitution’’ 1994
SAJELP 1
Glazewski J ‘‘The environment, human rights and a new South Africa’’ 1991
SAJHR 167
227
Henderson PGW ‘‘Some thoughts on distinctive principles of South African
environmental law’’ 2001 8 SAJELP 139
Keightley R ‘‘Public international law and the final Constitution’’ 1996 SAJHR
405
Kidd M ‘‘Alternatives to the criminal sanction in the enforcement of
environmental law’’ 2002 9 SAJELP 21
Loots C ‘‘Making environmental law effective’’ 1994 1 SAJELP 17
Nel J & Du Plessis W ‘‘An evaluation of NEMA based on a generic framework
for environmental legislation’’ 2001 8 SAJELP 1
Olivier M & Abioye M ‘‘International environmental law: Assessing compliance
and enforcement under South African and international law’’ 2008 33
SAYIL 184
Rabie MA ‘‘Legal remedies for environmental protection’’ 1972 CILSA 247
Smith S ‘‘Ecologically sustainable development’’ 1995 (31) Willamette Law
Review 261
Stone C ‘‘Should trees have standing? Towards legal rights for natural
objects’’ 1972 Southern California Law Review 450
Van der Vyver JD ‘‘The criminalisation and prosecution of environmental
malpractice in international law’’ 1998 23 SAYIL 1
Van der Vyver JD ‘‘State sovereignty and the environment in international law’’
1992 SALJ 472
Winstanley T ‘‘Entrenching environmental protection in the new Constitution’’
1995 SAJELP 85
POPULAR’’ MAGAZINES
Legalbrief 2779 (14 April 2011)

Time (2 January 1989)
GOVERNMENT DOCUMENTS, REPORTS AND POLICY PAPERS
CONNEP II Conference Proceedings Verbatim (1997-01-24)

Department of Environmental Affairs and Tourism Department of Environ-
mental Affairs and Tourism and Reconstruction and Development in the
new South Africa (Aug 1994)
Department of Minerals and Energy White Paper on a Minerals and Mining
Policy for South Africa, A Minerals and Mining Policy for South Africa,
October 1998 (GN 2359 in GG No 19344 of 1998-10-20)
National Climate Change Response Green Paper (2010) (GN 1083 in GG No
33801 of 2010-11-25)
228
National Climate Change Response White Paper (2011) (GN 757 in GG No
34695 of 2011-10-19)
Towards Development in South Africa: A discussion paper (1992) The
Environmental Monitoring Group: Western Cape (ISBN 0 620 16749 1)
White Paper on Environmental Management Policy for South Africa (GN 749 in
GG No 18894 of 1998-05-15)
White Paper on Environmental Management Policy (GN 1096 in GG No 18164
of 1997-07-28)
White Paper on the Conservation and Sustainable Use of South Africa’s
Biological Diversity (1997) (in GG 18163 of 1997-07-28)
White Paper on the Policy on a National Environmental Management System
for South Africa (1993), Department of Environment Affairs (ISBN 0-621-
15368-0)
White Paper on the Renewable Energy Policy of the Republic of South Africa
(GN 513 in GG No 26169 of 2004-05-14)
INTERNATIONAL INSTRUMENTS AND REPORTS (IN

CHRONOLOGICAL ORDER)
Sustainable development: A guide to our common future World Commission

on Environment and Development (WCED) (the Brundtland Commission)
(1987)
1990 EC Council Directive on Freedom of Access to Information on the
Environment (90/313/EEC)
Caring for the earth: Strategy for sustainable living (1991) World Conservation
Union (IUCN), United Nations Environment Programme (UNEP) and the
World Wide Fund for Nature (WWF)
Second world conservation strategy: Caring for the earth (1991)
Rio Summit Declaration on the Environment and Development (1992)
Framework Convention on Climate Change (1992)
United Nations Conference on Environment and Development Press summary
of agenda 21 (draft proposal) (1992) Rio de Janeiro
United Nations Conference on Environment and Development Earth summit
press summaries (draft proposal) (1992) Brazil
Vienna Declaration and Programme of Action (World Conference on Human
Rights (1993) (UN Document A/Conf 157/23 (1993)
Southern African Development Community (SADC) Policy and strategy for the
environment and sustainable development (1994)
Kyoto Protocol to the UN Framework Convention on Climate Change (1997) 2/
37 ILM 22
229
Convention on Access to Information, Public Participation in Decision Making
and Access to Justice in Environmental Matters (‘‘Aarhus Convention’’)
(1999) 38 ILM 517
Johannesburg Declaration on Sustainable Development adopted at the World
Summit on Sustainable Development (2002)
Climate Change 2014 Synthesis Report by the Intergovernmental Panel on
Climate Change (2015)
Conference of the Parties to the United Nations Framework Convention on
Climate Change, Twenty-first session – Adoption of the Paris Agreement
FCCC/CP2015/L RV1
INTERNET RESOURCES
Article 2(1)(a) of the Vienna Convention on the Law of Treaties (1969):

http://www.umm.edu/humanrts/instrtee/vienna convention.html
Website of the Department of Water Affairs and Environmental Affairs:
www.environment.gov.za
Centre for Environmental Rights (CER) website http://cer.org.za
Intergovernmental Panel on Climate Change (IPCC) www.ipcc.ch/index.htm
Zaberenko ‘‘Halt all carbon emissions by 2050 says Worldwatch’’ Reuters
13 January 2009
Dominic Rushe ‘‘Elon Musk and Disney boss quit Trump’s business panel over
Paris pullout’’ 2 June 2017 The Guardian
REFERENCE WORKS
Collins English dictionary: Millennium edition (1998)

Compact Oxford English dictionary (2005)
Wild and Wiley Webster’s new world law dictionary (2010)
LEGISLATION/STATUTES (IN ALPHABETICAL ORDER)
Animals Protection Act 71 of 1962

Conservation of Agricultural Resources Act 43 of 1983
Constitution of the Republic of South Africa, 1996
Constitution of the Republic of South Africa Act 200 of 1993
Development Facilitation Act 67 of 1995
Dumping at Sea Control Act 73 of 1980
Environment Conservation Act 73 of 1989
Hazardous Substances Act 15 of 1973
Health Act 63 of 1977
230
Inter-governmental Relations Framework Act 13 of 2005
Lake Areas Development Act 39 of 1975
Local Government: Municipal Structures Act 117 of 1998
Local Government: Municipal Systems Act 32 of 2000
Marine Living Resources Act 18 of 1998
Mineral and Petroleum Resources Act 28 of 2002
National Environmental Management Act 107 of 1998
National Environmental Management: Air Quality Act 39 of 2004
National Environmental Management: Biodiversity Act 10 of 2004
of 2008
National Environmental Management: Protected Areas Act 57 of 2003
National Environmental Management: Waste Act 59 of 2008
National Forests Act 84 of 1998
National Heritage Resources Act 25 of 1999
National Parks Act 57 of 1976
National Road Traffic Act 93 of 1996
National Veld and Forest Fire Act 101 of 1998
National Water Act 36 of 1998
Performing Animals Protection Act 24 of 1935
Prevention and Combating of Pollution of the Sea by Oil Act 6 of 1981
Promotion of Access to Information Act 2 of 2000
The Spatial Planning and Land Use Management Act 16 of 2013
Water Services Act 108 of 1997
Provincial legislation
Eastern Cape Parks and Tourism Agency Act 2 of 2010

KwaZulu-Natal Nature Conservation Management Act 9 of 1997
Land Use Planning Ordinance 15 of 1985 (C)
Limpopo Environmental Management Act 7 of 2003
Northern Cape Nature Conservation Act 9 of 2009
Northern Cape Planning and Development Act 7 of 1998
Provincial Parks Board Act (Eastern Cape) 12 of 2003
Western Cape Planning and Development Act 7 of 1999
231
CASES (IN ALPHABETICAL ORDER)
Aquafund (Pty) Ltd v Premier of the Western Cape 1997 (7) BCLR 907 (C)
Bareki v Gencor 2006 (1) SA 432 (T)
Bato Star Fishing (Pty) v Minister of Environmental Affairs and Tourism 2004 (4)
SA 490; 2004 (7) BCLR 687
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment
and Land Affairs 2004 (5) SA 124 (W)
City of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal 2010 (6) SA 182 (CC)
Dawnlawn Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3)
SA 344 (W)
Earthlife Africa Johannesburg v Minister of Environmental Affairs and others
2017 in the High Court of South Africa, Gauteng Division, Pretoria 65662/
16
Ex Parte President of the Republic of South Africa: In Re Constitutionality of the
Liquor Bill 2001 (1) SA 732 (CC)
Fuel Retailers Association of Southern Africa v Director-General Environmental
Management, Department of Agriculture, Conservation and Environment,
Mpumalanga Province 2007 (10) BCLR 1059 (CC), 2007 6 SA 4 (CC)
Government of South Africa and others v Grootboom 2001 (1) SA 46 (CC)
Harmony Gold Mining Co Ltd v Regional Director, Free State Department of
Water Affairs and Forestry and others [2006] 4 All SA 366 (W)
Harmony Gold Mining Co Ltd v Regional Director, Free State Department of
Water Affairs and Forestry [2006] 5 SA 483 (SCA)
Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts
Products 2004 (2) SA 393 (ECD)
HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism 2006
(5) SA 512 (TPD)
In re: Certification of the Constitution of the Republic of South Africa 1996 (10)
BCLR 1253 (CC)
King v Dykes 1971 (3) SA 540 (RA)
Louw NO v Swartland Municipality neutral citation 650/10 2011 ZASCA 142
Maccsand v City of Cape Town 2011 6 SA 633 (SCA)
McCarthy v Constantia Property Owners’ Association 1999 (4) SA 847 (C)
MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil
(Pty) Ltd and Another 2006 (5) SA 483 (SCA)
Minister of Health and Welfare v Woodcarb (Pty) Ltd 1996 (3) SA 155 (N)
232
Minister of Public Works and others v Kyalami Ridge Environmental Association
2001 (7) BCLR 652 (CC)
Van Huyssteen NO v Minister of Environmental Affairs and Tourism 1995 (9)
BCLR 1191 (C)
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & Others 2008 JOL 22099 (CC)
Wildlife Society of Southern Africa & Others v Minister of Environmental Affairs
and Tourism of South Africa 1996 (3) SA 1095 (Tk)
Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A)
233

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Study unit 2: Environmental law in South Africa 25

Study unit 3: International environmental law and

THEME II: THE CONSTITUTION OF THE REPUBLIC

Study unit 5: Cooperative government in environ-

Theme III: THE MANAGEMENT OF THE ENVIRONMENT

Study unit 7: Measures and institutions to ensure

Why you are studying Environmental Law

Relate the theoretical framework of . The development of environmental law is

Our approach to the study of the module in

Your approach to the study of the module in

How to use this study guide

We will indicate the activities as follows:

Comments on activities – feedback

Comments on activities will be indicated in the text as follows:

Comments on activity – feedback

Keeping a learning journal

http://www2.carleton.ca/law/conflict/independent-learning-initiative/ (accessed 2011-10-31).

What is a learning journal?

Objectives of a learning journal

How to keep a learning journal

Continuing with your learning journal

Your lecturers for LCP4805

THE RISE OF ENVIRONMENTAL CONCERNS

By the end of this study unit 1, you should be able to

& explain what constitutes the ‘‘environment’’

1.1 Introduction: environmental concerns

The reference to ‘‘earth’s vulnerability to man’s reckless ways’’ highlights the

We are constantly reminded that our planet is becoming ecologically more

(We will return to the various environmental problems we encounter today

Comments on activity 1 – feedback

Having drawn your attention to the environmental problems besetting our

The five considerations are as follows:

2. The major challenge of protecting the environment

3. In the management of the environment, law is central

4. The immensity and complexity of environmental laws

5. More frequent use of the law in environmental disputes

1.3 The meaning of the term ‘‘environment’’

To protect or manage these environments, the cooperation of governments,

1.3.1 A wide/expansive perspective

The Compact Oxford English dictionary (2005) defines the noun

Other components of the environment that are included in such a wide

We find such an extensive interpretation of the concept ‘‘environment’’ in the

We also come across a broad understanding of the concept ‘‘environment’’ in

1.3.2 A narrow/restricted perspective

Read through the explanation of the two perspectives on the

Comments on activity 3 – feedback

1.3.3 Towards a more realistic demarcation of

Fortunately, the National Environmental Management Act 107 of 1998 (NEMA)

(i) the land, water and atmosphere of the earth;

But, in the final instance, the meaning of ‘‘environment’’ is a political/policy

1. Why do we protect the environment?

Return to the newspaper article reproduced at the beginning

Comments on activity 4 – feedback

Executives of the construction firm would be quick to mention the improvement in

The meaning of the word ‘‘ethic(s)/ethical’’

. moral philosophies deal with relationships between individuals and

We will next consider three ethical approaches to the protection of the

. anthropocentrism (a ‘‘human-centred environmental ethic’’ – Glazewski

1.4.3 Biocentrism (also referred to as ecocentrism)

1.4.4 The ethic of sustainable development