South Africa's 3 000 km long coastline is home to at least a
third of South Africa's population, sustaining millions of
people. The White Paper on Sustainable Coastal Development recorded
that the direct and indirect benefits provided by our coast are
worth about R302 billion annually, and coastal ecosystem services
were estimated to be worth the equivalent of about 35% of GDP. The
interconnection of land, air and sea at the coast gives rise to
varying climatic conditions, ecosystems and rich resources which
attract a cross-section of people who engage in diverse and often
Historically, management of this precious resource has been
unsuccessful, resulting in rapid deterioration of the coastal
environment. The National Environmental Management : Integrated
Coastal Management Act 24 of 2008 ("ICMA") commenced on
the 1st December 2009, and is the legislative tool which will be
used to effect integrated coastal management.
ICMA focuses partly on protection of the environment. Section 58
obliges identified parties to take reasonable measures to prevent
and minimize adverse effects on the coastal environment in
accordance with the duty of care created by Section 28 of the
National Environmental Management Act ("NEMA"). This duty
of care requires every person who causes, has caused or may cause
significant pollution or degradation of the environment to take
reasonable measures to prevent it from occurring, continuing or
recurring, unless otherwise expressly authorized, to minimize and
rectify the damage. Section 58 prescribes that the definition of
"significant pollution or degradation of environment" in
NEMA be read to include "an adverse effect" on the
environment. NEMA does not define adverse effect, but ICMA provides
a detailed definition that focuses on impairment of the environment
that is not "trivial or insignificant". The persons to
whom this duty of care applies have been extended to include users
of coastal property, owners of persons in charge of vessels,
aircraft or structures at sea, operators of pipelines that end in
the coastal zone and persons who produce or discharge a substance
that may cause an adverse effect.
Section 58(2) is also innovative in that it prescribes that for
purposes of the duty of care, the Minister may determine that an
impact or activity described in the notice must be presumed, until
the contrary is proved, to result in an adverse effect.
While section 58 is necessary to ensure protection of our coast,
practical difficulties are anticipated. How will decision makers
determine what is more than 'trivial or insignificant'
without standards and guidelines? Without these it will be
difficult to achieve consistent decision-making or to hold
decision-makers accountable for poor decisions. In the absence of
practical guidelines, we have to await guideline decisions
– let's hope the decisions made advance sustainable
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Two important principles of South African law collided head
on, with unsatisfactory consequences, when Chief Bareki (a
traditional leader acting on behalf of his tribe) and an
environmental concern group sued Gencor and certain
subsidiaries for the environmental clean up following
discontinued asbestos mining activities.
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