Liability for past pollution

By Claire Tucker

New legislation seeks to make section 28 of the National Environmental Management Act 107 of 1998 (“NEMA”), which is concerned with the duty of care and remediation of environmental damage, retrospective. This Act, (the Environment Laws Amendment Act 14 of 2009) amends section 28 of the National Environmental Management Act 107 of 1998 NEMA. It was signed into law on 25 May 2009 but the commencement date has not yet been determined.

NEMA imposes the duty of care on the owner of land or premises, a person in control of land or premises or a person who has a right to use land or premises 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 significant pollution or degradation of the environment.

In terms of the Environment Laws Amendment Act, the duty to take reasonable measures to prevent pollution or environmental degradation or to remediate pollution or environmental degradation of the environment will apply to pollution or degradation that:

• occurred before the commencement of NEMA (29 January 1999);
• arises or is likely to arise at a different time from the actual activity that causes the contamination; or
• arises through an act or activity of a person that results in a change to the pre-existing contamination.

This Act will change the law as it was determined in the case of Bareki v Gencor in which the court held that the present section 28 does no operate retrospectively.

Once the Act commences the current owner of land where pollution or environmental degradation has occurred will be liable for any measure he or she is ordered to undertake (as a result of such pollution or environmental degradation) by the Director General of the Department of Water and Environmental Affairs or the Provincial Head of Department, even where the pollution or environmental degradation occurred in the past (prior to the commencement of NEMA) or where the land owner was not responsible for it. This change must be seen as supportive of the contaminated land provisions in the Waste Act discussed elsewhere which provisions have also not yet commenced.

For further information on this topic please contact Claire Tucker at Bowman Gilfillan Inc telephone +27 11 669 9000 or fax +27 11 669 9001 or email