Environmental law

There is increasing awareness in South Africa towards environmental issues and planning, in both the private and public sectors.  One of the most important pieces of legislation of relevance is the South African Constitution.

The Constitution of the Republic of South Africa, Act 108 of 1996

Section 24 of the Constitution provides that everyone has the right to:

(a)  An environment that is not harmful to their health or well-being.

(b)  To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation (ii) promote conservation (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

National Environmental Management Act, 107 of 1998

  • To provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance and procedures for co-ordinating environmental functions exercised by organs of state.
  • To provide for certain aspects of the administration and enforcement of other environmental management laws.  This Act gives effect to section 24 of the Constitution.

National Forests Act, 84 of  1998

The preamble of the Act states that Parliament recognises that –

  • everyone has the constitutional right to have the environment protected for the benefit of present and future generations;
  • natural forests and woodlands form an important part of that environment and need to be conserved and developed according to the principles of sustainable management;
  • plantation forests play an important role in the economy.

National Water Act, 36 of 1998

Which acknowledges the National Government’s overall responsibility for and authority over the nation’s water resources and their use, including the equitable allocation of water for beneficial use, the redistribution of water, and international water matters.

 Water Services Act, 108 of 1997

The Preamble states that the Act is aimed at:

  • recognising the rights of access to basic water supply and basic sanitation necessary to ensure sufficient water and an environment not harmful to health or well-being;
  • acknowledging that there is a duty on all spheres of Government to ensure that water supply services and sanitation services are provided in a manner which is efficient, equitable and sustainable;
  • acknowledging that all spheres of Government must strive to provide water supply services and sanitation services sufficient for subsistence and sustainable economic activity;
  • recognising that in striving to provide water supply services and sanitation services, all spheres of Government must observe and adhere to the principles of co-operative government;
  • confirming the National Government’s role as custodian of the nation’s water resources.

National Energy Act, 34 of 2008

  • To ensure that diverse energy resources are available, in sustainable quantities and at affordable prices, to the South African economy in support of economic growth and poverty alleviation, taking into account environmental management requirements and interactions amongst economic sectors.
  • It imposes a duty on any person who causes, has caused or may cause significant pollution or degradation to take reasonable measures to prevent, minimise and rectify significant pollution and environmental degradation.  There is no stipulated threshold limit of pollution that triggers the obligation to remediate and no legislated standards to which contamination must be remediated, but what is required is the taking of reasonable measures.  Non-compliance with the duty of care allows a competent authority to require that specified measures be taken (and if not taken, the competent authority may take those steps itself and recover the costs from various parties).
  • The responsibility for environmental degradation is placed on directors of companies in certain instances.

Air Quality Act, 39 of 2004

The ultimate outcome of the efficient and effective implementation of the Air Quality Act is ambient air that is not harmful to health and well being of all across the nation.

National Environmental Management: Biodiversity Act, 10 of 2004

Provides a regulatory framework to protect South Africa’s valuable species, ecosystems and its biological wealth.