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
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.
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