South Africa: What Does "Polluter Pays" Mean In South Africa

Last Updated: 15 September 2008
Article by Tim De Wet

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.

The plaintiffs relied principally on Section 28 of the NEMA (National Environmental Management Act) which requires every person causing significant pollution or degradation of the environment, to take reasonable measures to prevent it from occurring, continuing or recurring. The provision articulates the so-called "polluter pays" principle which has been globally accepted in progressive jurisdictions, and codified in the National Environmental Management Principles of NEMA. These principles were enacted to "... guide the interpretation, administration and implementation of this Act ..." and prescribe that (i) there should be life-cycle responsibility for anything which impacts on the environment; and that (ii) the costs of remedying environmental pollution and of preventing, controlling and minimising environmental damage must be paid by those responsible for harming the environment.

The court concluded that Section 28 at least creates strict liability for an owner or possessor of land on whose land an activity or process causing pollution has been performed so that proof of fault and also unlawful conduct is unnecessary. However, it also found that it was unlikely that the legislature intended Section 28 to operate retrospectively in respect of pollution which came about through activities prior to the commencement of the NEMA in 1999.

The court's reasoning revolved around the principle that the law-giver is presumed not to have intended to alter the law applicable to past events in a manner which is unfair to those concerned in them, unless a contrary intention appears from the legislation itself. The presumption against retrospectivity may be rebutted, either expressly or by necessary implication, by provisions or indications to the contrary in the enactment itself. The basis of the presumption is "... elementary considerations of fairness (which) dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly". If a person is not able to know the law, this results in unfairness which is an unacceptable encroachment upon the rule of law.

The Judge concluded that the "... unfairness of retrospective effect being given to [Section 28] is so great that it is unlikely that the legislature could have intended it".

Much turned on the Judge's perception of the degree of unfairness which would result from attaching retrospectivity to the "polluter pays" principle.

But, is it inherently unfair to require a polluter to remedy the aftermath of their actions even if, at the time that they conducted the polluting activity, it was not unlawful or if the full magnitude of the consequences of the polluting activity were not appreciated? If the polluter does not pay, is the resultant situation in which either the victims of the pollution or (as a last resort) the government (for which read the tax payer) pays, not significantly unfairer in the sense that entirely innocent persons who have not derived any benefit whatsoever from the polluting activities, should bear the brunt of funding the remediation costs?

This decision has understandably created some consternation amongst those who view "polluter pays" as an inviolate tenet of environmental law, regardless of when the polluting activities took place. It has possibly also lulled the perpetrators of "legacy" pollution into a false sense of security although this decision is unlikely to be the last word on the subject.

Far from creating certainty in the law, it would seem that there is at least an even chance that when the matter comes before the court again, a different conclusion might be reached. The better solution would be better legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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