Environmental law

The Constitutional Position

S 24 of the South African Constitution provides that: Everyone has the right -

1. to an environment that is not harmful to their health or well-being; and
2. (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -

1. (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. To this end several pieces of important legislation have been enacted not least of which is the ** National Environmental Management Act **(Nema).
   Pollution is defined by NEMA as:

   any change in the environment caused by:
   
   
   

   (i) substances;

   (ii) radioactive or other waves; or

   (iii) noise, odours, dust or heat, emitted from any activity, including the storage or treatment of waste or substances, construction and the provision of services, whether engaged in by any person or an organ of state, where that change has an adverse effect on human health or well- being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future; And anyone found causing significant pollution is liable to a fine not exceeding R 1million.




Whistleblowers are protected

S31 (4) of NEMA provides that:

no person is civilly or criminally liable or may be dismissed, disciplined, prejudiced or harassed on account of having disclosed any information, if the person in good faith reasonably believed at the time of the disclosure that he or she was disclosing evidence of an environmental risk and the disclosure was made in accordance with subsection (5). (5) Subsection (4) applies only if the person concerned: (a) disclosed the information concerned to: (i) a committee of Parliament or of a provincial legislature; (ii) an organ of state responsible for protecting any aspect of the environ- ment or emergency services; (iii) the Public Protector; (iv) the Human Rights Commission; (v) any attorney-general or his or her successor; (vi) more than one of the bodies or persons referred to in subparagraphs (i) to (v); (b) disclosed the information concerned to one or more news media and on clear and convincing grounds believed at the time of the disclosure: (i) that the disclosure was necessary to avert an imminent and serious threat to the environment, to ensure that the threat to the environment was properly and timeously investigated or to protect himself or herself against serious or irreparable harm from reprisals; or (ii) giving due weight to the importance of open, accountable and participatory administration, that the public interest in disclosure of the information clearly outweighed any need for nondisclosure; (c) disclosed the information concerned substantially in accordance with any applicable external or internal procedure, other than the procedure contemplated in paragraph (a) or (b), for reporting or otherwise remedying the matter concerned; or (d) disclosed information which, before the time of the disclosure of the information, had become available to the public, whether in the Republic or elsewhere. (6) Subsection (4) applies whether or not the person disclosing the infor- mation concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the matter concerned. (7) No person may advantage or promise to advantage any person for not exercising his or her right in terms of subsection (4).

and the handling of other natural resources. The aim of the act is:
2. To provide for the management and conservation of South Africa's biodiversity within the framework of the National Environmental Management Act, 1998;
3. the protection of species and ecosystems that warrant national protection;
4. the sustainable use of indigenous biological resources;
5. the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources;
6. the establishment and functions of a South African National Biodiversity Institute; and for matters connected therewith.
The objects of the Act are delineated as:
1. (a) within the framework of the National Environmental Management Act, to pro vide for-
1. (i) the management and conservation of biological diversity within the Republic and of the components of such biological diversity;
2. (ii) the use of indigenous biological resources in a sustainable manner; and
3. iiii) the fair and equitable sharing among stakeholders of benefits arising from bioprosgecting involving indigenous biological resources.
2. (b) to give effect to international agreements ratified by the repulic which are binding on the Republic relating to biodiversity
3. (c) to provide for co-operative governance in biodiversity management and
4. (d) to provide for a South African National Biodiversity Institute to assist in Republic and of the components of such biological diversity; from bioprosgecting involving indigenous biological resources;
5. (b) to give effect to ratified international agreements relating to biodiversity which are binding on the republic;
6. (c) to provide for co-operative governance in biodiversity management and
7. (d) to provide for a South African National Biodiversity Institute to assist in Republic and of the components of such biological diversity; from bioprosgecting involving indigenous biological resources; which are binding on the Republic; conservation; and achieving the objectives of this Act.
1.Constitution of the Republic of South Africa, 1996, 2. No. 10 of 2004: National Environmental Management: Biodiversity Act, 2004.

Contact Vivian Wright to find out what you can do to contribute to the preservation of our natural environment