Strict liability is a feature of South African law

JUDGE RULES THAT STRICT LIABILITY IS A FEATURE OF SA ENVIRONMENTAL LAW

In a case involving Gencor and communities in the North West Province (Chief Pule Shadrack VII Bareki v Gencor TPD Case Number 19895/2003 – “the Gencor case”) delivered on 17 October 2005 a Judge in the “Transvaal” Division of High Court, Judge De Villiers, ruled that section 28 of the National Environmental Management Act, 1998 does not have retrospective effect but made important pronouncements on the effect of section 28 of NEMA – in particular the Judge expressed the view that these sections impose “strict” or even “absolute” liability.

Section 28 of NEMA

Sections 28(1) and (2) of NEMA provides that “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.

(2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, include an owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which-

(a)        any activity or process is or was performed or undertaken; or

(b)        any other situation exists,

which causes, has caused or is likely to cause significant pollution or degradation of the environment.”

R54 million claimed in clean up costs

In the Gencor case the plaintiffs argued that Gencor and others had caused significant asbestos pollution through their mining activities in the North West Province between 1976 and 1981.  This had contaminated the mining area and the surrounding areas with, amongst other things, asbestos fibres which are extremely harmful to human health.  The plaintiffs estimated that it would cost R54million to clean up the dumps – the defendants argued that the real figure was far in excess of this.

Clean up of past pollution

“Retrospectively” means that although a law applies from the date of its commencement (1999 in the case of NEMA) it imposes new penalties on actions carried out before the law commenced.  In the Gencor case the communities argued that although the pollution occurred before NEMA commenced NEMA was retrospective and so required the polluters and the current owners to clean up the pollution. 

Judge De Villiers found that this was not the case and where a person polluted property prior to the commencement of NEMA in 1999 and did not continue polluting after the commencement the pollution liability and clean up provisions of NEMA cannot be used to order the clean up of the pollution. 

Strict Liability

Although Judge De Villiers did not rule that NEMA applied retrospectively he did make some important pronouncements on other aspects of the liability in NEMA.  In particular he was of the view that sections 28(1) and 28(2) of NEMA create strict or even absolute liability on an owner to take measures to clean up contaminated land even where the owner was not responsible for the pollution.  This is an important point for a purchaser of property to be aware of.  This is because in terms of section 28(2) of NEMA an owner of land is one of the parties that is listed as being required to take measures to clean up pollution on that land.

In my view, this approach by Judge De Villiers to sections 28(1) and (2) could be criticized by arguing that in fact section 28(2) of NEMA does not create additional persons who have the obligation to clean up only clarifies the obligation imposed on section 28(1).  Section 28(1) only imposes an obligation on those who actually cause pollution, section 28(2) states that this would include a land owner.  However, this is arguably only a land owner who also meets the criteria set out in section 28(1) ie a land owner who causes, has caused or may cause pollution.  This will no doubt be the subject of future litigation.

Judge De Villiers also states that even where pollution was authorised by law ie carried out in accordance with a permit the person who causes or has caused the pollution is still required to take reasonable measures to minimise or rectify such pollution.  It could be argued, although Judge De Villiers did not deal with this point, that compliance with the relevant permit conditions would constitute the “reasonable measures” required in such a circumstance. 

Another point made by Judge De Villiers is that where pollution cannot reasonably be avoided or stopped, the person who causes or has caused the pollution is required to take reasonable measures to minimise or rectify such pollution.  This is likely to be the case although in such an instance the obligation would primarily be to clean up the pollution caused.

It is clear from the above that, although there are some points that are likely to be the subject of future litigation, in general, a fairly strict approach to section 28 can be expected from the Courts in future.

The approach set out by Judge De Villiers is obviously of significance for purchasers of property, lessors of property as well as those carrying our activities in which an environmental effect is an inherent part of the activity, such as mining, operating a sewerage treatment plant or creating a disposal site of any type.

Communities and interest groups cannot enforce NEMA

Another point of significance raised in the judgement is that it is the Director-General of the Department of Environment Affairs who must enforce section 28.  It is not open to communities or interested members of the public to take action in terms of section 28.  This highlights the importance of maintaining a good relationship with the regulatory authorities as part of on going operations which will have an impact on the environment.

If the regulatory authorities fail to take action to enforce section 28 of NEMA it would presumably be open to members of the public or surrounding communities to approach the court for a “mandamus” or an order compelling the Director-General to take action in terms of section 28 – this validity of such an approach was also confirmed in the judgement.

Conclusion

This is probably the first of many judgements on the interpretation of section 28(1) and (2) of NEMA and this is only the judgement of a single judge which may yet be taken on appeal.  Nevertheless, the approach taken in the judgment – as well as the size of the claim - highlights the importance of environmental management measures to prevent pollution from occurring and the consequences that can flow where this is not done.

Please contact Claire Tucker (details below) if you would like a copy of the judgement or any advice on the application of NEMA.

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