Compendium of South African Environmental Legislation

Morné Van Der Linde, Loretta Feris

Description

The Compendium introduces and reproduces the main legislative provisions dealing with the environment in South Africa.Historically, integrated environmental management and its enforcement, from a regulatory approach, was virtually absent and any attempt made to protect the environment or matters inherent thereto can be described as both reactive and of an ad hoc nature.Although various regulatory norms relating to environmental protection and management can be traced back, as early as the 1940s, the first concerted effort to provide for environmental management in a more holistic approach, materialized through a legislative framework: The Environmental Conservation Act, Act 73 of 1989. In furtherance of the objectives of this act, the former Environmental Impact Assessment Regulations were promulgated during September 1997 which partially resulted in a more proactive approach to mitigating and managing any potential adverse impacts on the environment through developmental processes.Despite the initial positive approaches to regulating, protecting and managing the environment, various problems remained and South African Environmental Law remained inadequate and ineffective especially when aspects such as administration, governance, norm setting, enforcement and judicial action were critically considered and evaluated. This position, however, changed with the inclusion of section 24 (the environmental right) into the South African Constitution, Act 108 of 1996. The Constitution afforded every person with the right to an environment which is not harmful to their health and well-being. Not only was every person entitled to enjoy this right, but the Constitution also placed a constitutional mandate on government to protect the environment through reasonable legislative and other measures that prevent pollution, ecological degradation, promote conservation and secure ecological sustainable development and the use of natural resources while promoting justifiable economic and social development.In order to give effect to the aforesaid constitutional mandate, South African environmental law has been subjected to an intense revision process since 1996. The first law that was promulgated to give effect to this constitutional mandate was the National Environmental Management Act 107 of 1998. The National Environmental Management Act can be described as one of the most progressive developments in environmental norm setting which guides individuals, institutions and government in environmental decision making. Furthermore it provides for a range of key elements such as environmental principles, co-operative governance, a duty of care, enforcement mechanisms and integrated environmental management. In an approach to strengthen this framework law, various other specific environmental management acts have been promulgated which includes the promulgation of the National Environmental Management: Waste Act as recent as 2008. In addition to specific environmental management legislation promulgated, South African Environmental law has seen numerous positive contributions through both the revision of, and amendments to, laws regulating diverse thematic areas such as conservation, pollution, mining and water management.The objectives of the second edition of this Compendium remains essentially the same in that it serves as a quick reference guide to provide counsel, representatives of other interrelated disciplines with a quick, easy and user friendly reference guide to laws and norms applicable to environmental management in South Africa.A number of people were instrumental in making the first Compendium a reality and we specifically again would like to extend our appreciation and thanks to: Christof Heyns (Dean: Faculty of Law, University of Pretoria); Lizette Besaans (Pretoria University Law Press); the United Nations Environment Programme; and the Department of Environmental Affairs and Tourism (DEAT) (South Africa).In addition, we specifically extend our appreciation and thanks to Lizette Besaans (Pretoria University Law Press) and the Department of Environmental Affairs (DEA)(South Africa) for their invaluable assistance and contributions which resulted in this 2nd edition of the Compendium.About the editors:Morné van der Linde is an advocate of the High Court of South Africa.Loretta Ferisr Associate Professor of Law at the Institute for Marine and Environmental Law at the Faculty of Law, University of Cape Town.

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2010
• Nombre de lectures: 0
• EAN13: 9780981442068
• Langue: English
• Poids de l'ouvrage: 3 Mo

Extrait

COMPENDIUM OF SOUTH AFRICAN ENVIRONMENTAL LEGISLATION (2nd edition)

Morné van der Linde and Loretta Feris (editors)

2010

Compendium of South African Environmental Legislation (2nd edition)

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

To order, contact:

PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.az

Printed and bound by: ABC Press Cape Town

Cover design:

Lizette Besaans, Centre for Human Rights

Copyright permission:

This book is copyright under the Berne Convention. In terms of the Copyright Act 98 of 1978 no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the publishers.

ISBN: 978-0-9814420-6-8

Table of Contents

FOREWORD(By Ian Farlam)

FOREWORD(By Bakary Kante)

INTRODUCTION

1

2

CONSTITUTIONAL PROVISIONS RELEVANT TO THE ENVIRONMENT Constitution of the Republic of South Africa

LEGISLATIVE FRAMEWORK PROTECTING THE ENVIRONMENT 2.1 Table of legislation relevant to environmental protection 2.2 Selected South African environmental legislation 2.2.1 South African framework environmental legislation 2.2.1.1 National Environmental Management Act 2.2.1.2 National Environmental Management Act: Protected Areas Act 2.2.1.3 National Environmental Management Act: Biodiversity Act 2.2.1.4 National Environmental Management Act: Air Quality Act 2.2.1.5 National Environmental Management Act: Waste Act 2.2.1.6 National Environmental Management Act: Integrated Coastal Management Act 2.2.1.7 Environment Conservation Act

2.2.2

Conservation and natural resources 2.2.2.1 Biodiversity 2.2.2.1.1 National Environmental Management: Protected Areas Act 2.2.2.1.2 National Environmental Management: Biodiversity Act 2.2.2.2 Forests 2.2.2.2.1 National Forest Act 2.2.2.2.2 National Veld and Forest Fire Act 2.2.2.2.3 National Environmental Management: Protected Areas Act 2.2.2.2.4 National Environmental Management: Biodiversity Act 2.2.2.3 Water 2.2.2.3.1 National Water Act 2.2.2.3.2 Water Services Act 2.2.2.3.3 National Environmental Management: Protected Areas Act 2.2.2.3.4 National Environmental Management: Biodiversity Act

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1

3

5

7

8

20

20 31 31 32 87

119

157

183

228

283

294 294 295

296

296 297 334 334

334

335 236 431 464

464

2.2.2.4 Agriculture464 2.2.2.4.1 Conservation of Agricultural 466 Resources Act 2.2.2.4.2 Genetically Modified Organism Act 466 2.2.2.4.3 Agricultural Laws Rationalisation Act 467 2.2.2.4.4 National Environmental Management: 467 Protected Areas Act 2.2.2.4.5 National Environmental Management: 467 Biodiversity Act 2.2.2.5 Animals467 2.2.2.5.1 Animals Protection Act 468 2.2.2.5.2 Sea Birds and Seals Protection Act 468 2.2.2.5.3 Societies for the Prevention of Cruelty 468 to Animals Act 2.2.2.5.4 Animal Improvement Act 468 2.2.2.5.5 Animal Identification Act 468 2.2.2.5.6 Animal Health Act 468 2.2.2.5.7 National Environmental Management: 469 Protected Areas Act 2.2.2.5.8 National Environmental Management: 469 Biodiversity Act 2.2.2.6 Fisheries469 2.2.2.6.1 Marine Living Resources Act 470 2.2.2.6.2 National Environmental Management: 502 Protected Areas Act 2.2.2.6.3 National Environmental Management: 502 Biodiversity Act 2.2.2.7 Land502 2.2.2.7.1 Environment Conservation Act 503 2.2.2.7.2 Environment Conservation 503 Extension Act 2.2.2.7.3 Environmental Laws 503 Rationalisation Act 2.2.2.7.4 National Environmental 503 Management Act 2.2.2.7.5 National Environmental Management: 503 Integrated Coastal Management Act 2.2.2.7.6 National Environmental Management: 504 Protected Areas Act 2.2.2.7.7 National Environmental Management: 504 Biodiversity Act 2.2.3 Pollution 505 2.2.3.1 Land Pollution506 2.2.3.1.1 National Environmental 506 Management Act 2.2.3.1.2 National Environmental Management: 506 Waste Act 2.2.3.1.3 National Environmental Management: 507 Integrated Coastal Management Act 2.2.3.1.4 Hazardous Substances Act 507 2.2.3.1.5 Foodstuffs, Cosmetic and 507 Disinfectant Act 2.2.3.1.6 Mineral and Petroleum Resources 507 Development Act

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2.2.3.1.7 Nuclear Energy Act 566 2.2.3.1.8 Nuclear Regulator Act 567 2.2.3.1.9 Conservation of Agricultural 567 Resources Act 2.2.3.1.10 Fertilisers, Farm Feeds, Agricultural 567 Remedies and Stock Remedies Act 2.2.3.1.11 Agricultural Pests Act 567 2.2.3.2 Atmospheric Pollution568 2.2.3.2.1 Atmospheric Pollution Prevention Act 568 2.2.3.2.2. National Environmental Management: 568 Air Quality Act 2.2.3.3 Noise Pollution569 2.2.3.3.1 The Aviation Act 569 2.2.3.4 Pollution of Fresh Water569 2.2.3.4.1 National Water Act 570 2.2.3.4.1 National Environmental Management: 570 Waste Act 2.2.3.5 Marine Pollution571 2.2.3.5.1 National Environmental Management: 571 Integrated Coastal Management Act 2.2.3.5.2 Marine Living Resources Act 572 2.2.3.5.3 Marine Pollution (Control and 572 Civil Liability) Act 2.2.3.5.4 Marine Pollution (Intervention) Act 572 2.2.3.5.5 Marine Pollution (Prevention of 573 Pollution from Ships) Act 2.2.3.5.6 Mineral and Petroleum Resources 573 Development Act 2.2.3.5.7 Wreck and Salvage Act 574 2.2.3.6 Pollution from Land-based Activities586 2.2.3.6.1 National Environmental Management: 586 Integrated Coastal Management Act 2.2.3.6.2 National Environmental Management: 587 Waste Act 2.2.3.6.3 National Water Act 587 2.2.3.7 Waste Management587 2.2.3.7.1 National Environmental Management: 588 Waste Act 2.2.3.7.2 Hazardous Substances Act 588 2.2.3.7.3 National Water Act 588 2.2.3.7.4 Health Act 589 2.2.3.7.5 Occupational Health Safety Act 589 2.2.4 Energy and energy resources 590 2.2.4.1 Electricity591 2.2.4.1.1 Electricity Regulation Act 592 2.2.4.2 Energy592 A. Nuclear Energy593 2.2.4.2.1 Nuclear Energy Act 593 2.2.4.2.2 National Nuclear Regulator Act 633 B. Gas659 2.2.4.2.3 Gas Act 661

v

3

4

C. Liquid Fuels 2.2.4.2.4 Liquid Fuels and Oil Act Repeal Act 2.2.4.2.5 Petroleum Products Act D. Mining 2.2.4.2.5 Mineral and Petroleum Resources Development Act 2.3Table of relevant cases

MULTILATERAL ENVIRONMENTAL AGREEMENTS WHICH SOUTH AFRICA HAS RATIFIED/ACCEDED TO

3.1Selected Global Multilateral Environmental Agreements: United Nations and Other Treaties

3.2Regional Multilateral Environmental Agreements: African Union and SADC Treaties/Protocols 3.2.1 African Union 3.2.2 Southern African Development Community (SADC) 3.3Other Regional Agreements Transfrontier Conservation Areas Initiatives

USEFUL WEBSITES DEALING WITH ENVIRONMENTAL LAW

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673 674 674 674 675

676

678

678

685

685 686 688 688

689

FOREWORD

Judges and other lawyers have in recent years become increasingly aware of the important role of the law, both at international and at national level, in freeing, as it was put in the Millenium Declaration adopted by the UN General Assembly in September 2000, ‘all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs’.

At the August 2002 Global Judges Symposium held in Johannesburg, those present being members of the judiciary from across the globe, adopted a statement, now known as the Johannesburg Principles, in which they affirmed their adherence to the Rio Declaration on Environment and Development which lays down the basic principles of sustainable development. They also affirmed that ‘an independent Judiciary and judicial process is vital for the implementation, development and enforcement of environmental law’.

They stated that they were ‘strongly of the view that there is an urgent need to strengthen the capacity of judges, prosecutors, legislators and all persons who play a critical role at national level’ in the field of environmental law. They expressed their conviction that a principal cause contributing to the lack of effective implementation, development and enforcement in this field is what they described as ‘the deficiency in the knowledge, relevant skills and information in regard to environmental law’. Accordingly, they reiterated the urgent need to strengthen the capacity of judges and others who play a critical role at national level in matters affecting the environment. To this end they called for a concerted and sustained programme of work focussed on education, training and dissemination of information, including judicial colloquia.

In December 2003, at a meeting of Chief Justices and senior judges from 13 countries in Southern and Central Africa, the Johannesburg Principles were reaffirmed and appreciation was expressed to the Executive Director of the United Nations Environment Programme (UNEP) for the measures he had undertaken to implement the outcome of the Global Symposium. Plans of work were developed during the meeting so as to enable the judiciaries of the different countries to contribute effectively to the development, implemen- tation and enforcement of environmental law in their jurisdictions.

I am sure that thisCompendiumwill make a significant contribution to that strengthening the capacity of judges and others working in the field of environmental law in this country, regarded so necessary by judges at the Global Symposium.

In addition to the material it contains relating to South African legislation on environmental law, a further valuable feature of work is the infor-mation it contains regarding multilateral environmental agreements, as well as the particulars it provides of the various websites which usefully may be consulted for information on the topic.

I congratulate its editor, Advocate Morné vd Linde, on the book that he has produced. May it enjoy the success it deserves.

Ian Farlam, Judge of Appeal, Supreme Court of Appeal, South Africa

1

FOREWORD

The importance of the interaction between environmental law and sustainable development should not be underestimated. As stated by Tommy Koh in the UNEP MagazineOur Planet(vol. 15, No 3), ‘a country’s capacity to protect its environment and its prospects of achieving sustainable development are enhanced if its adherence to the rule of law is strong’.

Based on this conviction, UNEP has been and is at the forefront in supporting the efforts of the community of nations to develop international, regional and national legal regimes to promote the goals of sustainable development and in its implementation as well as in providing material resources, technical support and expert guidance in the advancement of environmental work in several related fields including the development of environment law and the universal principles that guide policymakers as well as lawyers and judges in the dispensation of environmental justice. This is evident in the assistance provided by UNEP for capacity building in many countries for the development, further strengthening and implementation of national environmental legislation. The conduct of national, regional and global training programmes and the wide range of UNEP publications and dissemination of environmental material and information have contributed to the work of a large number of individuals and organisations working for the advancement of environmental law and policy.

Timely, accurate and dependable information is essential for making well informed decisions by everyone engaged in the development, application and enforcement of environmental law at international and national levels. One of the major challenges that legal stakeholders in developing countries and countries with economies in transition face is getting access to relevant information and material on environmental law.

UNEP’s experience, drawn from its training programmes, judicial symposia, missions and other contacts, is that government officials, judges, teachers and students, and those engaged in environment-related work in regional, national and local institutions, the private sector and civil society organisations, particularly in developing countries and countries with economies in transition, feel a serious and urgent need for easy access to environmental law materials. Although there are many reference books on international law, there is a notable dearth of such books on environmental law. Where available, such books tend to be expensive and beyond the reach of many individuals and institutions.

TheCompendium of South African Environmental Legislation is one of the numerous environmental law publications published by UNEP in an effort to respond to the wide demand for environmental law materials. It is intended to be a handy reference book of up-to-date information on environmental legislation at the national level.

It provides a source of quick and easy reference for all those engaged in the field of environmental law and policy in governments, parliaments, judiciaries, private and public sectors, national and regional institutions, civil society organisations and the public.

It brings together South Africa’s Constitutional provisions relevant to the environment and the existing framework environmental legislation as well as

3

sectoral legislation on environment and natural resources management. It also provides a list and brief description of selected multilateral environmental agreements to which South Africa is a party. I hope that thisCompendium and the other UNEP Environmental Law publications will assist those working in the area of environmental law and policy as well as its administration, and will further increase the interest in environmental law as a tool to address current and emerging environmental challenges. This publication will also represent an important contribution to the work of the legal communities in other countries who share similar legal systems with South Africa.

I wish to acknowledge the excellent word done by the Centre for Human Rights of the University of Pretoria, and especially to Advocate Morné vd Linde who edited this publication.

Bakary Kante,Director, Division of Environmental Policy Development and Law, United Nations Environment Programme, Kenya

4

INTRODUCTION

Historically, integrated environmental management and its enforcement, from a regulatory approach, was virtually absent and any attempt made to protect the environment or matters inherent thereto can be described as both reactive and of anad hocnature.

Although various regulatory norms relating to environmental protection and management can be traced back, as early as the 1940s, the first concerted effort to provide for environmental management in a more holistic approach, materialized through a legislative framework: The Environmental Conservation Act, Act 73 of 1989. In furtherance of the objectives of this act, the former Environmental Impact Assessment Regulations were promulgated during September 1997 which partially resulted in a more proactive approach to mitigating and managing any potential adverse impacts on the environment through developmental processes.

Despite the initial positive approaches to regulating, protecting and managing the environment, various problems remained and South African Environmental Law remained inadequate and ineffective especially when aspects such as administration, governance, norm setting, enforcement and judicial action were critically considered and evaluated.

This position, however, changed with the inclusion of section 24 (the environmental right) into the South African Constitution, Act 108 of 1996. The Constitution afforded every person with the right to an environment which is not harmful to their health and well-being. Not only was every person entitled to enjoy this right, but the Constitution also placed a constitutional mandate on government to protect the environment through reasonable legislative and other measures that prevent pollution, ecological degradation, promote conservation and secure ecological sustainable development and the use of natural resources while promoting justifiable economic and social development.

In order to give effect to the aforesaid constitutional mandate, South African environmental law has been subjected to an intense revision process since 1996. The first law that was promulgated to give effect to this constitutional mandate was the National Environmental Management Act 107 of 1998. The National Environmental Management Act can be described as one of the most progressive developments in environmental norm setting which guides individuals, institutions and government in environmental decision making. Furthermore it provides for a range of key elements such as environmental principles, co-operative governance, a duty of care, enforcement mechanisms and integrated environmental management.

In an approach to strengthen this framework law, various other specific environmental management acts have been promulgated which includes the promulgation of the National Environmental Management: Waste Act as recent as 2008. In addition to specific environmental management legislation promulgated, South African Environmental law has seen numerous positive contributions through both the revision of, and amendments to, laws regulating diverse thematic areas such as conservation, pollution, mining and water management.

The objectives of the second edition of thisCompendiumremains essentially the same in that it serves as a quick reference guide to provide counsel,

5