IURE 424

Study Unit 3.2

NEMA Principles & Provisions on Pollution Control
Learning Outcomes

At the end of the study section, you should be able to:

• Critically discuss and apply the provisions of section 2 of
the NEMA.
• Critically discuss and apply the provisions of sections 28
-30 of the NEMA.
Study Material

• NEMA
• Chapter 1: Kidd M Environmental Law
Introduction to NEMA
In SU 3.1, we focused on

Preamble to NEMA

• NEMA gives effect to section 24 of the Constitution

Section 1 of NEMA (definitions)

• Activities
• Assessment
• Commercially confidential information
• Competent authority
• Ecosystem
• Environment
• Environmental authorisation
• Pollution
• Public participation process
• Sustainable development……
Long Title of NEMA
Purpose/ Objectives
• To provide for cooperative environmental
governance
• To establish principles for decision-making on
matters affecting the environment
• To provide for institutions that will promote
cooperative governance and procedures for
coordinating environmental functions
exercised by organs of state
• To provide for matters of administration and the
enforcement of other environmental laws
Outline of the NEMA
Aspects regulated by the Act
Section 1 – Definitions

Chapter 1 – National environmental management principles

Chapter 2 – Institutions

Chapter 3 – Procedures for cooperative governance

Chapter 4 – Decision-making and conflict management

Chapter 5 – Integrated environmental management

Chapter 6 – International obligations and agreements

Chapter 7 – Compliance and enforcement

Chapter 8 – Environmental management cooperation agreements

Chapter 9 – Administration of NEMA and specific environmental management acts

NEMA: National Environmental
Management Principles
 Section 2 of NEMA | National Environmental
Management Principles
• Section 2 Principles
• S 2(1) – Explains the scope of application of the
principles
• Makes it clear that these principles apply throughout the
Republic and to all actions of the state that may affect the
environment, particularly in situations itemised in the section
• S 2(2) – Actual start of the principles
• 27 Principles
• All important for environmental management in the SA
context
• Study the principles from the Act itself!
• What is a principle?
 Section 2: National Environmental Management Principles

1. S 2(2) – Anthropocentric principle: Environmental

management (EM) must place people and their needs
at the forefront of its concern and serve physical,
psychological, developmental, cultural and social
interests equitably
2. S 2 (3)-(4) – Sustainable development principle:
Development must be socially, environmentally and
economically sustainable
 Section 2: National Environmental Management Principles (cont)

3. Sustainable development requires consideration of all relevant

factors:
i. Avoidance of disturbance of ecosystems etc
ii. Avoidance, minimisation and remedying of pollution and
degradation
iii. Avoidance of disturbance of landscapes and cultural heritage
iv. Waste avoidance, re-use and recycling of waste
v. Use and exploitation of non-renewable natural resources is
responsible and equitable
vi. That development, use and exploitation of renewable resources
and ecosystems do not exceed the level beyond which their
integrity is jeopardized
vii. Risk averse and cautious approach which takes into account
limits of current knowledge
viii. That negative impact on the environment and on people’s
environmental rights be anticipated and prevented or
otherwise minimised and remedied
 Section 2: National Environmental Management Principles (cont)

4. S 2(b) – Integration principle: Environmental management must be

integrated - adopted ‘best practicable environmental option’ (BPEO)

5. S 2(c) – Environmental justice principle: Environmental justice

must be pursued to avoid unfair discrimination

6. S 2(d) – Equitable access principle: Equitable access to environmental

resources, benefits and services to meet basic human needs
7. S 2(e) – Cradle to grave principle: Responsibility for environmental health
and safety consequences of a programme or project throughout its life-cycle

8. S 2(f) – Public participation principle: Participation of all interested

and affected parties in environmental governance to be promoted
 Section 2: National Environmental Management Principles (cont)

9. S 2(g) – Responsiveness principle: Decisions to take into account the

interests, needs and values of all interested and affected parties -
knowledge (traditional and ordinary)
10. S 2(h) – Informed community principle: Community well-being and
empowerment to be promoted through environmental education and raising of
environmental awareness
11. S 2(i) – Impact assessment principle: Social, economic and environmental
impacts of activities (including disadvantages and benefits) must be
considered, assessed and evaluated and decisions must be appropriate
in light of such consideration and assessment
12. S 2(j) – Worker participation principle: Right of workers to refuse work that
is harmful to health or environment must be protected
13. S 2(k) – Openness and transparency principle: Decisions must be taken
in an open and transparent manner access to info must be provided
14. S 2(l) – Co-operative principle: Intergovernmental coordination and
harmonisation of policies, legislation and actions in regard to the
environment
 Section 2: National Environmental Management Principles (cont)
15. S 2(m) – Conflict resolution principle: Actual or potential conflicts of
interest between organs of state should be resolved through conflict resolution
procedures
16. S 2(n) – Global and international responsibility principle: Global and
international responsibilities relating to the environment must be discharged
in national interest
17. S 2(o) – Public trust principle: Environment is held in public trust for the
people – beneficial use of environmental resources must serve the public
interest; environment is people’s common heritage
18. S 2 (p) - Polluter pays principle: Costs of remedying pollution,
environmental degradation and prevention and control of pollution must be
paid by those responsible for the pollution
19. S 2(q) – Woman and youth involvement principle: Vital role of women
and children in environmental management and development must be
recognised and their participation promoted
20. S 2 (r) – Flagged ecosystem principle: Sensitive, vulnerable, highly dynamic
or stressed ecosystems such as coastal shores, estuaries, wetlands and
similar systems require specific attention in management and planning
processes - especially where they are subject to significant human
resource usage and development pressure.
Focus on selected NEMA principles

Sustainable development:
The World Commission on Environment and Development: development that meets the
needs of the present without compromising the ability of future generations to meet their
own needs.
• NEMA: sustainable development is the integration of social, economic and environmental factors into planning,
implementation and decision-making, so as to ensure that development serves present and future generations.

Environmental justice:
Nature’s environmental bounty should be equitably distributed and that certain sectors of
society should not bear an unequal brunt of negative environmental impacts.

• Hofrichter: A central principle of environmental justice stresses equal access to natural resources and the right to clean
air and water, adequate health care, affordable shelter and a safe workplace…environmental problems remain
inseparable from other social injustices such as poverty, racism, sexism, unemployment, urban deterioration.
• Environmental Justice Network Forum: Environmental Justice is about social transformation directed towards meeting
basic human needs and enhancing our quality of life……
• NEMA: ‘environmental justice must be pursued so that adverse environmental impacts shall not be distributed…..’
• ‘equitable access to environmental resources, benefits and services to meet basic human needs and ensure human
well-being must be pursued….’
Selected NEMA principles (cont)

• Intergenerational equity:
• Edith Weiss: there is a genetic urge in most humans to care for their offspring,
and that caring for the future is an effective way of managing the present. IE is
included the environmental right of the South African Constitution, which states
that the environment must be protected for the benefit of ‘present and future
generations.’
• BP Southern Africa v MEC Agriculture: the balancing of environmental interests
with justifiable social and economic development is to be conceptualised well
beyond the present living generation.
• Section 24 of the Constitution requires the environment to be protected for the benefit of
‘present and future generations’.
• Public trust:
• The Illinois Central Railroad Company: when a state holds a resource which is
available for the free use of the general public, a court will look with considerable
scepticism upon any government conduct which is calculated either to reallocate
that resource to more restricted use or to subject public uses to self-interest of
private parties.
• NEMA: ‘the environment is held in public trust for the people….’
Selected NEMA principles (cont)
Precautionary principle
• It provides guidance in the development and application of environmental law
where there is scientific uncertainty. The principle rests on the need to recognise
that harm to the environment can be irreversible, and it is therefore better to avoid
any possible harm than to try to remedy it later.
• NEMA: ‘ a risk-averse and cautious approach is applied, which takes into account the
limits of the current knowledge about the consequences of decisions and actions’.
Preventive principle
• All activity which does or will cause environmental pollution is to be prohibited. It
seeks to minimise environmental damage by requiring that action be taken at an
early stage of the process, and if possible, before such damage has actually
occurred. ‘known as principle off avoidance’
• NEMA: ‘the negative impacts on the environment and on people’s environmental rights be
anticipated and prevented…..’
Polluter pays principle
• The costs of the pollution should be borne by the generator of the pollution, not the
society at large. The negative cost of industrial production, pollution and waste,
are often borne by society at large, rather than the polluter. ‘He who pollutes must
pay’.
• NEMA: ‘The costs of remedying pollution, environmental degradation and consequent
adverse health effect………must be paid for by those responsible for harming the
environment.
Selected NEMA principles (cont)

• Local level governance

• Those who make decisions should be obliged to live by them reflecting that
notion ‘think globally, act locally’.
• Principle of co- operation
• There must be collaboration between the public and private sector in attaining
environmental goals.
• Life-cycle responsibility
• Henderson: A person who is initially responsible for producing a dangerous or
toxic substance should remain responsible for such substance for the life of that
substance, until it has been properly disposed of. The initiator of the
dangerous/harmful substance should remain responsible from the ‘cradle to the
grave.’
• Duty of care to avoid harm to the environment
• Also known as the ‘environmental responsibility principle’. It imposes on every
entity the duty to act with due care to avoid damage to others or to the
environment, or where impact on the environment is unavoidable, to mitigate
harm. It also includes the notion of ‘remediation of past harm’.
Application and relevance of
environmental principles

Case law
MEC for Agriculture, Conservation, Environment and Land
Affairs v Sasol Oil (Pty) Ltd and another [2006] 2 All SA 17 (SCA)
MEC for Agriculture, Conservation, Environment and Land Affairs v
Sasol Oil (Pty) Ltd and another [2006] 2 All SA 17 (SCA)

• Facts
• The respondents wished to construct a petrol filling station and convenience shop in
certain property
• Respondent applied to the appellant’s department for authorisation of the
construction
• any activity that has been identified in a notice by the Minister in the Gazette as
potentially detrimental to the environment in terms of section 21(1) of the Act
may not be undertaken without the necessary authorisation of the Minister of
Environmental Affairs and Tourism or designated competent authority.
• Respondent’s application was refused by the appellant, based on the application of
environmental management principles
• Principles
• [par 15] - Of particular importance is NEMA’s injunction that the interpretation of any law concerned with the
protection and management of the environment must be guided by its principles. At the heart of these is the
principle of “sustainable development”, which requires organs of state to evaluate the “social, economic and
environmental impacts of activities”. This is the broad context and framework within which item 1(c)(ii) is to be
construed.
• [par 16] - To attempt to separate the commercial aspects of a filling station from its essential features is not only
impractical but makes little sense from an environmental perspective. It also flies in the face of the principle of
sustainable development
Duduzile Baleni & Others v Regional Manager: Eastern Cape
Department of Mineral Resources 11 September 2020 96628/2015
Duduzile Baleni & Others v Regional Manager: Eastern
Cape Department of Mineral Resources 11 September
2020 96628/2015
• Facts & judgment
• The Applicants were the iNkosana of the Umgungundlovu community council (Duduzile
Baleni) and 89 community members who were registered interested and affected parties
in a 2015 mining rights application made by Transworld Energy and Mineral Resources
Pty Ltd (TEM).
• TEM had applied to mine titanium on the Applicants’ land in terms of section 22 of the
MPRDA.
• The primary issue in this matter is whether interested and affected parties (I&APs) in an
application for a mining right are entitled to a copy of the mining right application
documents in terms of sections 10 and 22(4) of the Mineral and Petroleum Resources
Development Act 28 of 2002 (MPRDA).
• In reaching her decision, Judge Makhubele agreed with the Applicants’ interpretation of
the MPDRA sections in finding that I&APs should not have to go through the time-
consuming and often unsatisfactory PAIA process in order to obtain a mining right
application.
• The judge held that the Regional Manager of the Department of Mineral Resources must
provide the mining right application documents to interested and affected parties on
request.
• Application of environmental management principles
• Judge Makhubele cited the Save the Vaal and Fuel Retailers judgments in considering
the nature of sustainable development and the right of I&APs to raise environmental
objections to proposed mining developments.
• The Earthlife Africa judgment was also considered in which an environmental
authorisation was set aside for insufficient public participation. The judge reaffirmed the
importance of meaningful public participation.
Minister of Public Works and Others v Kyalami Ridge Environmental
Association and Others (Mukhwevho Intervening) 2001 (3) SA 1151 (CC)
Minister of Public Works and Others v Kyalami Ridge Environmental
Association and Others (Mukhwevho Intervening) 2001 (3) SA 1151 (CC)
• Facts
• Floods caused damage and rendered many people homeless.
• Government appointed a committee to co-ordinate its response. One of the decisions taken by
the committee was to establish a transit camp on the Leeuwkop prison farm to accommodate
flood-victims of the Alexandra Township.

• Application of environmental management principles

• The respondent (Kyalami Residents Association), representing residents in the vicinity of
Leeuwkop, challenged this decision, alleging that the camp would adversely affect their property
values and environment.
• [66] The Kyalami residents contend that in deciding to establish the camp at Leeuwkop the government failed to
comply with certain principles set out in the NEMA…
• [67] Chapter 1 of the Management Act makes provision for national environmental management principles. It has
only one section, Section 2, which sets out what the principles are. The Kyalami residents contend that the
government failed to comply with the principles of section 2(4)(g) and (k) which require that “decisions must take
into account the interests, needs and values of all interested and affected parties . . .” and that “decisions must be
taken in an open and transparent manner . . .”.
• [68] Section 2(1), which deals with the application of the principles, provides: “The principles set out in this section
apply throughout the Republic to the actions of all organs of state that may significantly affect the environment and
• [69-71].

• The Witwatersrand High Court set aside the committee’s decision, directing
government to reconsider it after consulting the residents and considering the
environmental impact of the camp and the laws applicable.
• The government appealed and appeal was upheld…
Test your own knowledge and
understanding
Which environmental management principles are
involved in these scenarios?
Scenario 1
Scenario 2
Scenario 3
Scenario 4
Chapter 7 of NEMA
Compliance, Enforcement and Protection
Sections 28-30 of NEMA
Issues dealt with in chapter 7 of NEMA
• Part 1: Environmental hazards, access to information and
protection of whistle-blowers
• Section 28 – Duty of care and remediation of environmental damage
• Section 29 – Protection of workers refusing to do environmentally
hazardous work
• Section 30 – Control of emergency incidents
• Section 31 – Access to environmental information and protection of
whistle-blowers
• Part 2: Application of the Act and specific environmental
management Acts, which deals with the appointment of
environmental management inspectors and their powers and
responsibilities, including the power to issue compliance notices
• Part 3: Judicial matters
• Section 32 – Legal standing to enforce environmental laws
• Section 33 – Private Prosecution
• Section 34 – Criminal Proceedings (including issues such as directors’
liability and other aspects relating to the prosecution of environmental
offences)
Note – In this lesson, we
are only focusing on the
provisions in chapter 7 of
NEMA on Pollution Control
Section 28-30 of NEMA
Section 28 of NEMA

28 Duty of care and remediation of

environmental damage
• (1) “Every person who causes, has caused or may
cause significant pollution or degradation of the
environment must take reasonable measures to
prevent such pollution or degradation from
occurring, continuing or recurring in so far as such
harm to the environment is authorized by law or
cannot reasonably be avoided or stopped, to
minimise and rectify such pollution or degradation
of the environment.”
Analysis of section 28(1) of NEMA

• The Duty of Care is also known as the ‘environmental responsibility

principle’.
• It imposes on every entity or person, the duty to act with due care to avoid damage to
others or to the environment, or where impact on the environment is unavoidable, to
mitigate harm. It also includes the notion of ‘remediation of past harm’.
• A legal responsibility is placed on any person who causes harm to the
environment.
• This duty extends not only to the originator, but also to the owner of land or
premises, a person in control of land or premises (lessee) or a person who has
a right to use the land or premises (sub-lessees, contractors and sub-
contractors), on which or in 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.
• The relevant authority may direct any individual in question to take certain steps
to remedy the situation. Should the recipient of such directive fail to comply,
the authority can take the necessary steps and then recover the costs, not just
from the polluter but from any or all of the persons listed in subsection 8.
Duty of care and remediation of environmental damage

Sec 28(1)A: Subsection

1 also applies to • occurred before the
significant pollution or commencement of the Act.
degradation of the
environment that – (retrospective application)

Sec 28(3): The • (f) Remedy the effects of the

measures required by
subsection 1 may pollution or degradation.
include measures to (Polluter pays principle)
 Section 29 of NEMA
Protection of workers refusing to do environmentally hazardous work

• Section 29(1) –
• General Rule: no person is civilly or criminally liable or may be dismissed,
disciplined, prejudiced or harassed for refusing to perform any work, if the person
in good faith and reasonably believes that the performance of such work will
result in imminent and serious threat to the environment.
• 29(2) - An employee who has refused to work, must ASAP inform, either
personally or through a representative, hi/her employer about the refusal
to work and the reasons for that refusal.
• 29(4) - An employer or his representative may not advantage or promise
to advantage any person, for not exercising their right to refuse to
perform work, that may result in imminent and serious threat to the
environment.
• 29(5) - An employer may not take action or threaten to take action
against any person who has exercised his right to refuse to perform work,
that may result in imminent and serious threat to the environment
Section 30 of NEMA
Control of emergency incidents
Section 30(1)
In this section -
• (a) ‘Incident’ means: an unexpected sudden occurrence, including
a major emission, fire or explosion leading to serious danger to
the public or potentially serious pollution of or detriment to the
environment, whether immediate or delayed.
• (b) ‘Responsible person’: Any person who is responsible for the
incident, owns any hazardous substance involved in the incident,
or was in control of any hazardous substance involved in the
incident at the time of the incident.
• (c) ‘Relevant authority’: A municipality with jurisdiction over the
affected area, a provincial head of department or the designated
person by the MEC, when that incident occurred, the Director-
General, any other Director-General of a national department.
Section 30(3) of NEMA
Control of emergency incidents (cont)
• Section 30(3) - Duties of the responsible person:
• The responsible person or his or her employer where the incident occurred, must immediately report
the incident to the Director General, the SAPS, the relevant fire department, the relevant provincial
head or municipality, and all persons whose health may be affected by the incident. The report must
comply with the requirements in section 30(3).
• Section 30(4) - The responsible person must also take the following measures:
a) Take all reasonable measures to contain and minimise the effects of the incident on the
environment and any risks posed by the incident to the health, safety and property of persons;
b) Undertake clean-up procedures;
c) Remedy the effects of the incident;
d) Assess the immediate and long-term effects of the incident on the environment and public
health.
• Section 30 (6)-(8) - Duties of the relevant authority:
• The relevant authority may direct the responsible person to undertake specific measures, within a
specified time, to fulfil his or her obligations relating to reasonable measures, clean up.
• If the responsible person fails to abide by the directive, or if the responsible person cannot be
found, the relevant authority may take other necessary measures.
Case law (1)
Bareki NO v Gencor Ltd 2006 (1) SA 432 (T)
Case law (2)
Hichange Investments (Pty) Ltd v Cape Produce 2004 (2) SA 393 (E)
Case Law (3)
Truck and General Insurance v Verulam Fuel Distributors 2007 (2) SA 26
(SCA)
Thank you