Document(s) 7 of 15

Introduction

Notwithstanding the efforts of environmental lawyers and legislators, current South African environmental law has little influence over long-term strategic industrial decision-making. The response of many South African industries to environmental law is reactive rather than proactive. South African environmental law is not designed to encourage long-term environmental planning by industry. This is largely due to problems of fragmentation and poor enforcement.

At the same time confusion over industry’s environmental responsibilities creates a difficult context for new industrial developments. The absence of clear legal guidelines for environmental impact assessments and other means of managing the environmental impacts of new investments, leads to conflict between communities and developers. The law is not helpful in resolving these conflicts. As a result, investments are sometimes unnecessarily delayed.

In South Africa today we have, in some sense, the worst of both worlds. Environmental laws fail to regulate industrial activities in a way that adequately protects the environment in the long-term. Yet, at the same time, in the short-term, environmental law fails to provide guidelines which would allow new investment decisions to be made in a rapid and environmentally responsible manner.

While South Africa is not short of environmental law, it is short of effective environmental law. In addition to certain gaps in the law itself, this ineffectiveness has two fundamental causes: the first is inadequate enforcement of environmental law and the second a lack of effective administration and management of environmental quality. With regards to enforcement, environmental law is ineffective, not only because the penalties for environmental damage are seldom severe enough to deter polluters but also because the existing body of environmental legislation is weakly wielded. Whatever deterrents or incentives there may be on the books, these all too often remain unregulated in practice. Effective administration, including development of the law and improvement in the quality of its enforcement, is hampered by a lack of clear policy direction by government.

The constitutional devolution of governmental power over the environment to the nine provinces has further complicated the administration of environmental quality control, exacerbating the problems created by the absence of a coordinated approach to environmental management. No matter how far-reaching and well-intentioned, environmental law cannot be effective without adequate enforcement, penalties for contravention and administration.

Recently, however, there have been some promising signs of change. The development of the consultative national environmental policy process and the integrated pollution control process, discussed in this chapter, herald a new era for environmental management in South Africa. As these processes take root, and especially if they impose stringent environmental management and pollution control requirements, industry will be forced to reconsider production processes. It is then that environmental law will begin to assume a significant role in influencing industrial strategy.

This chapter is an overview of the changing constitutional and institutional context of environmental law in South Africa. It provides a brief description of current environmental legislation and details recent developments and trends in environmental law and policy. Throughout the chapter, the often considerable gap between environmental law and the practices of enforcement agencies and of industry are noted. The chapter concludes with several suggestions for narrowing that gap, seeking a way to ensure that environmental considerations are incorporated into industrial planning decisions.

The impact of the Constitution on environmental law

The effect of the Constitution¹ on environmental law and its administration can be divided into two categories:

• the Constitution contains a number of federal elements, dividing governmental powers between the national and provincial levels of government. The power to make and administer law in respect of the environment is placed in the hands of provincial governments. At the same time, national government retains the power to make and administer environmental law in certain circumstances; and
  
  
• the Constitution requires current and future legislation and the conduct of the government to conform to the provisions of the Bill of Rights. The Bill of Rights contains a specific right to a healthy environment as well as a number of rights pertaining to the conduct of the administrative powers of government that will affect the administration and enforcement of environmental law.

¹ References in this chapter to the Constitution are to the Constitution of the Republic of South Africa, 1996, adopted by the Constitutional Assembly on 8 May 1996. References to the interim Constitution are to the Constitution of the Republic of South Africa, Act 200 of 1993. At the time of writing, the Constitution was not yet in operation, having been referred to the Constitutional Court for certification in terms of Chapter 5 of the interim Constitution. Once certified, the Constitution will come into operation on a date established by the President by proclamation, but no later than 1 January 1997 (section 244).

The constitutional distribution of powers over the environment

Under the pre-1994 constitutional dispensation, legislative authority over the environment was centralised, while responsibility for the administration of environmental law was fragmented (Loots 1996). While Parliament had the power to legislate over all aspects of environmental protection, the administration of parliamentary legislation was divided between a number of national government departments and provincial and local authorities. Under the 1996 Constitution, both legislative and administrative control over the environment is fragmented.

The Constitution accords legislative powers to provincial legislatures and governments, concurrent with those of Parliament and the national government, over a list of functional areas. The list includes the areas of agriculture, administration of indigenous forests, nature and soil conservation, planning, pollution control, tourism and recreation, as well as the functional area of “environment” itself. Provincial legislation prevails over parliamentary legislation in the listed functional areas except in certain circumstances. According to section 146 of the Constitution, national legislation will prevail over provincial legislation if it deals with a matter that cannot be regulated effectively by legislation enacted by individual provinces; if it provides for national uniformity of norms, standards, frameworks or policies; if it is necessary for the maintenance of national security, economic unity, the protection and promotion of economic activity across provincial boundaries, the promotion of equal opportunity or equal access to government services or the protection of the environment; and if it is aimed at preventing unreasonable action by a province that is prejudicial to the economic, health or security interest of another province or the country as a whole or impedes the implementation of national economic policy.

Thus, for example, an Act of Parliament seeking to implement Republic-wide environmental standards in accordance with international legal obligations would prevail over a provincial law that failed to measure up to such norms and standards since it provides for national norms and standards and is aimed at the protection of the environment. In effect, then, responsibility for legislation and administration of environmental law is in the hands of the provinces, subject to the power of the national government to lay down national policy and to override provincial legislation in a number of circumstances.

Most environmental legislation endows government officials and bodies with the power to enforce and administer its provisions (Loots 1994:17-22). Administrative officials may, for example, be authorised by legislation to issue regulations or other forms of delegated legislation that supply the practical and technical detail of environmental management. Activities that may threaten the environment are usually controlled by issuing permits and licences and by monitoring or inspection by government officials. The constitutional division of administrative power, therefore, has crucial significance for environmental law.

In terms of the Constitution, the executive authority of the Republic vests in the President and Cabinet. Provincial executive authority vests in the premiers and executive councils of the provinces. Provinces have executive authority to administer provincial legislation, to administer national legislation falling within the functional areas listed in schedules 4 and 5 of the Constitution unless that national legislation provides otherwise, and to administer functions specifically delegated to the provinces by national legislation.

Currently, the Department of Environmental Affairs and Tourism plays the major role in the administration of environmental affairs at a national level in South Africa. The department is principally responsible for formulating general environmental policy and coordinating and monitoring the administration and application of this policy by the different national executive institutions. Several other central government departments are also involved in environmental management. The land-use planning function is the responsibility of the departments of Land and Agriculture Affairs. The conservation of soil and control of agricultural resources fall under the jurisdiction of the directorate of resource conservation of the Department of Agriculture.

The management of water resources falls under the Department of Water Affairs and Forestry. Certain health aspects of water quality, radiation and air pollution fall under the jurisdiction of the Department of Health. The responsibility for controlling oil pollution at sea is shared by the departments of Transport and of Environmental Affairs and Tourism. The Department of Education and the National Monuments Council are responsible for the preservation of certain cultural and historical assets. The Department of Mineral and Energy Affairs exercises control, through its mineral laws administration branch and the government mining engineer, over energy matters and the exploitation of minerals.

It is clear that a number of the powers currently administered by central government fall within the areas of executive competence of the provinces. This means that competence to administer existing powers delegated by parliamentary legislation and currently administered by central government will fall to the executive authorities of the provinces once powers of administration under that legislation are assigned by the President.² In terms of the constitutional division of power, central government will retain administrative competence in respect of the formulation of general policy; the implementation of minimum, Republic-wide norms and standards; and executive functions in respect of environmental matters which have implications across both provincial and national boundaries (such as, for example, air pollution controls). Further, as outlined above, central government will retain responsibility for the implementation of policy, norms and standards that derive from South Africa’s international law obligations. Remaining delegated legislative powers and functions should then be assigned to the relevant provincial authority once the province has the administrative capacity to exercise and perform those powers and functions. This process commenced in 1995, under the interim Constitution, with the assignment to provinces of powers and functions contained in the Environment Conservation Act 73 of 1989, the Mountain Catchment Areas Act 63 of 1970, the Transvaal Nature Conservation Ordinance of 1983 and the Sea Shore Act 21 of 1935 (Loots 1996: 3).

The devolution of environmental management powers and functions to the provinces in terms of the interim and final constitutions runs counter to the idea that centralisation is essential for the formulation and implementation of an efficient and integrated environmental management policy. Instead, environmental management is placed in the hands of the executive authorities of nine provinces, with widely differing administrative capacities, resources and priorities. Provincial boundaries cut across environmental boundaries, the effect of which is that bioregions such as catchments may become the administrative responsibility of a number of provinces. It is suggested that a single, strong government department or agency would be far more effective in forcing compliance with environmental legislation.³

²In terms of Schedule 6 of the Constitution.

Despite the devolution of environmental law powers to the provinces, the Constitution permits a measure of central control in the form of national powers of standard-setting and policy formulation. Proper use of these powers would allow some of the benefits of centralised administration of environmental law to be achieved within the limits imposed by the federal elements of the Constitution. A strong national department of the environment with responsibility for all aspects of environmental protection would be able to control and guide provincial law-making and administration of environmental matters by prescribing policy and national minimum standards (Loots 1996: 6).

Fundamental rights

Chapter 2 of the Constitution sets out a number of fundamental rights. A law or administrative action which violates any of these rights will be unlawful, unless the limitation of the right in question can be justified by the government.⁴

The inclusion of an environmental right in the Constitution is likely to influence judidal decision-making by requiring that due weight be given to environmental considerations, traditionally undervalued by the courts.⁵ For example, the Indian Supreme Court has used the environmental right provided for in the Indian Constitution to order the temporary closure of a limestone mine, the operation of which adversely affected life in a nearby village. The mine was required to show how it could mitigate the harmful effects of its activities.⁶ Without the constitutional recognition of an environmental right, a South African court faced with the same case would in all likelihood consider the private law rights of the mine-owners to exploit their property to outweigh the public interest in a healthy environment.

³ International experience suggests that the enforcement of environmental law is improved by the establishment of a central government organ to administer and enforce legislative requirements. In 1982 the United States Environmental Protection Agency established a federal programme to investigate and prosecute environmental crimes in conjunction with the land and natural resources division of the United States Department of Justice. The Environmental Protection Agency hired a group of special investigators, and the Department of Justice organised a special environmental crimes unit to prosecute the cases identified by Environmental Protection Agency investigators. Between 1983 and 1990 the environmental crimes unit indicted 761 individuals and corporations. In 1990 its rate of successful prosecution was as high as 85%. Similarly, the British Environment Protection Act 1990 establishes a single agency—Her Majesty’s Inspectorate of Pollution—to control industrial pollution.

⁴ Section 36 of the Constitution provides that fundamental rights may be limited only in terms of law of general application and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, having regard to all relevant factors, including:

1. the nature of the right;
   
   
2. the importance of the purpose of the limitation;
   
   
3. the nature and extent of the limitation;
   
   
4. the relation between the limitation and its purpose; and
   
   
5. less restrictive means to achieve the purpose.

⁵ Section 24 of the Constitution provides that everyone has the right:

1. to an environment that is not harmful to their health or well-being; and
   
   
2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:
   
   
   1. prevent pollution and ecological degradation;
      
      
   2. promote conservation; and
      
      
   3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The environmental right requires the government to take legislative steps to protect the environment and justifies such steps if they clash with other rights (such as, for example, the right to property). A significant implication of the environmental right is the result of the fact that it not only binds the state in its relations with individuals, but that individuals may assert their rights against the state and against other individuals.⁷ This means that where a person’s right to a healthy environment is violated by the actions of a private individual or company, that person may invoke the right and may seek the relief provided for in the Bill of Rights.

The availability of a constitutional right and a remedy for the breach of that right is of particular importance for the enforcement of environmental law. There are a number of non-governmental environmental and human rights organisations in South Africa which would be willing to initiate litigation on environmental issues against industries which cause environmental degradation and government agencies which fail to comply with their legal obligations. Without a constitutional right, two major obstacles stood in the way of such litigation: lack of locus standi and lack of funding. While the Constitution does not address the funding obstacle, the common law rule of standing that a plaintiff must be personally adversely affected by the wrong which gives rise to the action is considerably relaxed. Where a violation of fundamental rights is concerned, relief may be claimed by any person, including an organisation, acting in the interests of any other person or class of persons adversely affected by the infringement. As a result, an organisation may litigate in the public interest or claim relief in a representative capacity on behalf of persons adversely affected by illegal conduct.

Administrative law principles have made a significant contribution towards ensuring that environmental factors are taken into account in the exercise of administrative discretion. The aclministrative justice section of the Constitution guarantees lawful, reasonable and procedurally fair administrative action. The section grants a right to everyone adversely affected by administrative action to be given written reasons for that action.⁸

⁶ Kinkri Devi v. State of Himachal Pradesh 1988 AIR 4.

⁷ Section 8(1) of the final Constitution provides that the Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all other organs of state. Section 8(2) provides that a right in the Bill of Rights binds all natural and juristic persons if, and to the extent that, it is applicable, taking into account the nature of the right and of any duty imposed by the right. Activities that impact on the environment and which may affect environmental rights cannot conceivably be said to be restricted to public, state or government activities. The activities of private natural and juristic persons impact on the environment at least as much as those of the government. It follows that the environmental right in section 24(a) binds individuals as well as the state. The right in section 24(b), because of its reference to “legislative and other measures”, imposes duties solely on the state and, therefore, is binding only on the state.

⁸ Section 33 of the Constitution provides:

1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
   
   
2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

A right closely related to the right to reasons for administrative decisions is the right of public access to information held by the state. The right granted in the Constitution is a blanket right of access to all state information.⁹ Taken together, these rights will alleviate the absence of information relating to state actions that has hitherto frustrated the conduct of environmentally based litigation.

Administrative justice rights will further affect current and future environmental legislation by prohibiting the granting of wide or unbounded discretionary powers to officials. The exercise of discretionary powers granted without an adequate legislative framework of standards constraining those powers may violate the right to lawful administrative action. The clauses may require that reasonable standards be set out in legislation against which the exercise of discretion may be measured. This may require considerable redrafting of environmental legislation.¹⁰

A constitutional right to property may place considerable limits on environmental law. Environmental laws and regulations will have to fall within the constitutionally permissible limits of state interference with property rights. The Constitution prohibits the expropriation by the state of “rights in property” without payment of just and equitable compensation. Since many environmental statutes may entail restrictions on the use of private property, the property clause may require payment of compensation if such restrictions are interpreted as expropriations of rights to property.

Strict liability

Strict liability clauses are a feature of environmental law in many countries. A strict liability clause in an environmental statute provides that fault in the sense of careless or intentional wrongdoing need not be established by the state (in the case of a criminal prosecution) or by a plaintiff (in the case of a civil action) in order to impose criminal or civil liability on the polluter. Ownership or control over the operations of a polluting facility would result in liability if it were established that pollution emanated from that facility. Strict liability provisions may impose liability to compensate authorities or individuals who have incurred clean-up costs, or may facilitate individual claims for damages brought by individuals injured by the pollution.

⁹ Section 32 of the Constitution provides that: (l)Everyone has the right of access to:

1. any information held by the state; and
   
   
2. any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

¹⁰ For example, the powers such as those granted to the Minister of Water Affairs by section 9A of the Water Act 54 of 1956 to “control, limit or prohibit” the use of public water “whenever in his opinion a shortage exists or is likely to arise” to the extent that “he in the public interest may deem expedient and in the manner and subject to such conditions as he may think fit “may be unconstitutional. In the absence of any statutory definition of the public interest, the minister’s powers amount to an unbounded or subjective discretion. Such a discretion may fail to meet the requirement of section 24(d) that administrative action is “justifiable in relation to the reasons given for it”. See Derek Spitz, “Water law and the Constitution” in “Submission to the Department of Water Affairs and Forestry by the L&PC water law legal grouping” (Land & Agriculture Policy Centre, August 1995: 91-95).

In South Africa a number of strict liability measures have been enacted.¹¹ It is unclear, however, whether such measures are constitutional. Where a strict liability clause assists the imposition of criminal liability it will violate the right to be presumed innocent in terms of the Constitution. In the criminal field, at least, it is unlikely that strict liability clauses will survive constitutional challenge unless the state is able to satisfy the test for the limitation of fundamental rights. This will, at the minimum, require such provisions to be narrowly tailored to ensure that the risk of conviction of innocent people is minimised.

As for the imposition of civil liability, it is arguable that a strict liability measure may violate the right to non-discrimination, in so far as certain classes of persons (plaintiffs in environmental litigation) are unfairly favoured at the expense of another class of persons (defendants in environmental litigation). To withstand constitutional scrutiny, strict liability measures would have to be justified as a reasonable limitation of the right, rationally related to the goal of securing the protection of the environment.

Environmental legislation regulating industrial projects

Apart from controls exercised by land-use planning legislation, the most important body of environmental law affecting industry is pollution control legislation. Pollution control in South Africa is characterised by a number of problems. The principal obstacle to an effective pollution control regime is an uncoordinated approach by the various regulatory authorities recognised by the legislation. Moreover, the environmental objectives of much pollution legislation is not made clear and, in some cases, individual pieces of legislation conflict with others.

Enforcement of the pollution laws has clearly been inadequate, particularly when it has been delegated to local administrative structures. This is the result of a lack of clear direction and training from the central structures, which have not seen the development of capacity at the different levels of government as a strategic imperative that ensures the successful implementation of legislation. A prevailing perception of the system is that there is too cosy a relationship between industry and the regulatory authorities, as is evidenced by low prosecution levels. Certainly, the authorities are constrained by a lack of resources, a lack of qualified personnel and by the legislation itself.

Pollution control is administered by a number of national, provincial and local government departments. Responsibility for air quality was previously administered by the Department of Health but is now administered by the Department of Environmental Affairs and Tourism. Hazardous substances are regulated by the departments of Health and Labour. Freshwater pollution is controlled by the Department of Water Affairs and Forestry, sea-water pollution by the departments of Environmental Affairs and Tourism, Water Affairs and Forestry and Transport. The use of pesticides and fertilisers is controlled by the Department of Agriculture. The control of solid waste is particularly unsatisfactory, some aspects falling under the Department of Environmental Affairs and Tourism, others under the Department of Water Affairs and Forestry and most aspects being taken care of by local authorities with little or no guidance from central government (Loots, unpublished note). As has been noted above, provincial legislatures now have the power to make law regarding pollution control and the provinces will either administer those laws themselves or delegate power to local authorities.

¹¹ Sections 22A and 22B of the Water Act 54 of 1956; section 31A of the Environment Conservation Act 73 of 1989; section 9 of the Combating of Pollution of the Sea by Oil Act 6 of 1981 and section 61 of the Nuclear Energy Act 131 of 1993.

The integrated pollution control process aims to address the currently fragmented administration of pollution management. At present, however, a cross-media approach to pollution control is entirely absent in legislation.

Air pollution control

The control of air pollution in South Africa is effected by means of one comprehensive statute: the Atmospheric Pollution Prevention Act 45 of 1965. The only other legislation which deals with limited aspects of air pollution control are the Health Act 63 of 1977, regulations in terms of the Mines and Works Act 27 of 1956 (still applicable in terms of the Minerals Act 50 of 1991) and the Road Traffic Act 29 of 1989. The Atmospheric Pollution Prevention Act is administered by the Department of Environmental Affairs and Tourism.

The Atmospheric Pollution Prevention Act controls four types of atmospheric pollution: noxious and offensive gases, smoke, dust and vehicular emissions. Noxious and offensive gases, which are defined in the Act to include a large number of compounds caused by industrial pollution, are controlled by requiring operators of certain scheduled processes,¹² within controlled areas, to obtain from the chief air pollution control officer a registration certificate authorising the continuation of that process. Since 1968 the whole of South Africa has been declared a controlled area.¹³

The chief air pollution control officer is authorised to grant such a certificate if satisfied that “the best practicable means” are being adopted for preventing or reducing to a minimum the escape into the atmosphere of noxious or offensive gases. “Best practicable means” is defined in the Act to include the provision and maintenance of the necessary appliances to prevent air pollution, the effective care and operation of such appliances and the adoption of any other methods which are practicable and cost-effective within the prevailing technical context. The chief air pollution control officer has interpreted this definition as the assessment of the problems of air cleaning associated with each type of process, of which there may be many examples in the country, and to decide what degree of air cleaning can be achieved, bearing in mind the different techniques available, the costs associated with their installation and operation and the effects which these costs will have on the ability of the firms concerned to operate without financial loss.

Application of “best practicable means” clearly involves a subjective evaluation on the part of the chief air pollution control officer and, in practice, is generally interpreted in collaboration with the industries concerned. As such, no national, or even regional, standards for air cleanliness have been established, as the degree of industrial air pollution tolerated is largely at the discretion of the chief air pollution control officer. Guidelines for each process, based on concentrations of pollutants emitted, have, however, been laid down by the department and are generally incorporated into specific registration certificates. Once the guidelines form part of a certificate, they become legally binding on the industry concerned. Registration certificates operate as permits which allow the scheduled process to be carried on subject to certain conditions. At present there are approximately 2 000 certificates in operation for approximately 1200 industrial plans in South Africa.

¹² At present the second schedule to the Act has 69 scheduled processes listed which are generally considered to be the major causes of industrial air pollution in South Africa.

¹³ Government Notice R1776 of 4 October 1968.

Both smoke and dust pollution are controlled generally by the declaration of control areas in which certain prescribed steps are required to be taken by persons in control of such pollution-causing activities. Pollution by smoke is controlled by local authorities, whereas dust pollution is controlled at national level. Vehicular emissions, which are in practice inadequately enforced, are nonetheless provided for in the Act by allowing local authorities to conduct inspections of vehicles on public roads.

As is the case with much environmental legislation in South Africa, control over air pollution is highly fragmented, with overburdened air pollution officers appointed by local authorities being responsible to central government and monitoring air quality within their own municipal areas, despite the fact that air pollution does not confine itself to municipal boundaries.

Approximately 200 stations throughout the country monitor the levels of SO2 and particulate matter in the air, and 150 monitor smoke. About 41 local authorities are involved in this process. In addition, large companies such as Sasol and AECI have their own monitoring stations. A central database of information compiled over the last few years is now available. Monthly reports detailing emission levels are submitted to the department, which requires 90% compliance with the prescribed standard for the industry concerned. Written notice is given to the industry in the event of the acceptable level being exceeded, and non-compliance results in the threat of cancellation of the certificate. It is significant to note, however, that to date only 20 certificates have been cancelled (Petrie 1992).

It has been suggested that the legislative framework created by the Atmospheric Pollution Prevention Act has fragmented rather than consolidated administrative control over air quality. This fragmentation has prevented the existing pollution inspectorate, already inadequately staffed and insufficiently supported with scientific services, from monitoring air quality and compliance with guidelines set out in certificates. The scope of the administrative discretion given to the chief air pollution control officer and the local authorities must also be reviewed if South African air quality control is to match standards in Europe and the USA.

Clearly undermining the efficacy of current air quality control is the very low sanction attached to air pollution offences. In some states in the USA, for example, penalties for air pollution may be as high as $25 000 per day of the offence, compared to R500 in South Africa. Also of concern is the fact that emissions in South Africa are controlled by guidelines, which only become legally binding once incorporated into a certificate, as opposed to a system of uniformly applicable emission standards.

It is widely accepted that current air pollution legislation has done little to improve air quality in South Africa. Since the promulgation of the Atmospheric Pollution Prevention Act in 1965, air quality in South Africa has steadily declined. Although most industries that generate significant quantities of aerial emissions are scheduled processes in terms of the Act, the standards required by the Act are fairly open-ended and are dependent on the subjective judgement of the chief air pollution control officer. Air pollution control tends to be focused on the reduction of visible particles in aerial waste streams or waste streams that give rise to visible pollution, for example, NOx and its formation of photochemical smog.

Despite the absence of meaningful incentives and sanctions, a number of South African industries have installed air pollution control technology. However, this technology has often been in the form of electrostatic precipitation to remove particulate matter from aerial waste streams so that emissions from stacks become less visible. Furthermore, many industries have introduced air pollution reduction targets as part of their internal, self-regulatory process of environmental management. In the face of weak and poorly enforced air pollution legislation it is safe to conclude that industry will not develop air pollution reduction programmes in response to a fear of increased liability from air pollution prevention legislation. In the absence of legislative change, reductions in industrial air emissions would have to be fuelled by international pressures, demands from non-governmental organisations and the public or profit incentives.

Water pollution control

South African water law is currently in transition. A process aimed at redrafting the Water Act 54 of 1956 was initiated by the Department of Water Affairs and Forestry in March 1995. After extensive public consultation and the appointment of two panels consisting of experts from within and outside the department, a discussion document was released by the minister in April 1996, containing a set of principles on which the final legal structure of South African water law is to be based (Department of Water Affairs and Forestry 1996). After further public consultation relating to the principles, the final phase of the process will involve the drafting of new legislation in accordance with the principles under the supervision of a team of legal experts.

Many of the principles that have been developed are aimed at redressing historical inequalities in the allocation and distribution of water rights. Most fundamentally, the principles propose a uniform allocation system in terms of which all water has a similar legal status and over which the state has control. At this stage the details of the new allocation mechanism have not been finalised, but it is unlikely that it will significantly undermine the security of industry’s right to use water.

One of the principles regarding water resource management approaches, however, is of specific interest. The principle states that “water quality management options should include the use of economic incentives and penalties to reduce pollution; and the possibility of irretrievable environmental degradation as a result of pollution should be prevented” (Department of Water Affairs and Forestry 1996: Principle D5). The explanatory text accompanying this principle makes specific reference to a commitment to the “polluter pays” principle in the case of waste disposal and, furthermore, provides the way for a marketable system of water rights and, possibly, the trading of a form of pollution credits.

Unlike environment, water is an area of national competence in terms of the Constitution. The national Department of Water Affairs and Forestry is thus responsible for all water affairs in South Africa but is assisted by numerous regional offices throughout the country. Apart from the Water Act, there is a wide variety of legislation dealing with water pollution and a number of government departments are involved in its administration. This, together with the control exercised by individuals in terms of private rights to water, has fragmented the administrative control of water. It is the stated policy of the Department of Water Affairs and Forestry, reflected in the principles on water law reform, to manage the water resources of the country on a catchment basis. Catchment boundaries do not, however, generally coincide with political or provincial boundaries. The effect of this is that in one catchment more than one administrative body may have authority to manage the water resources in their respective areas of jurisdiction.

The Department of Water Affairs and Forestry accepts that the concept of zero pollution is not its goal. Water is a scarce resource in South Africa and reused effluents are considered vital supplements to fresh-water resources. Rather, the Department of Water Affairs and Forestry’s policy is embodied in the concept of “fitness for use”, which aims to ensure that water of acceptable quality continues to be available for recognised uses, such as urban, industrial, agricultural, recreation and conservation. The “fitness for use” concept is thus relative, recognising that different users require different qualities of water. A major problem with the application of the concept, however, is that users who fall outside the definition of “recognised users”, such as informal settlements or many rural communities, have no assurance that water which satisfies their needs will continue to be available.

From a pollution control perspective, in order to achieve “fitness for use”, the sources of the pollution need to be monitored. Thus far the pollution control strategies of the Department of Water Affairs and Forestry have focused on the control of point sources of pollution and have largely ignored the impact of diffuse pollution sources. Since 1991 the Department of Water Affairs and Forestry has begun shifting its control strategy from the uniform effluent standards approach to the receiving water quality objectives approach. The implementation of this approach is, however, proving more difficult than was originally anticipated. In practice, therefore, the uniform effluent standards approach remains the basis of the department’s practice and remains the approach provided for in legislation.

The uniform effluent standards approach aims to control the quality of effluents that enter the water environment by requiring that effluents conform with certain prescribed standards set at technologically and economically attainable levels. The relaxation of these standards is usually negotiated in individual cases on the basis of technological or economic considerations. The standards were initially aimed at limiting the rate of deterioration in water quality by focusing on pollution and promoting waste water treatment technology.

The receiving water quality objectives approach was adopted in view of the fact that, notwithstanding the uniform effluent standards approach, the quality of South African water resources was continuing to deteriorate. Part of the reason for this was that standards were frequently set and exemptions granted without knowledge of the impact that these may have had on the receiving waters. The receiving water quality objectives approach provides that in certain catchments, effluents should be discharged to the surface drainage system without the quality specifications of the receiving water (based on the needs of downstream users) being exceeded.

While the receiving water quality objectives approach is a major policy advance, it is proving to be difficult and time-consuming to implement. The primary reason for this is that it requires the determination of the water quality needs for each downstream user to calculate the quality and volume of the effluent that can be discharged upstream. As the long-term low-level impacts of marginally unsuitable water quality are largely unknown for many uses, it is difficult to calculate such values. This problem is compounded by the fact that there is no incentive for downstream water users to be more precise about their water quality requirements.

At present, however, the Water Act exercises control over the use of water by industry by regulating industrial water consumption and by regulating the discharge of effluents. To control consumption, section 11 of the Act requires anyone using public water for industrial purposes to obtain the permission of a water court, and in certain circumstances a permit from the minister. These permits essentially provide for a system of reporting back to the department on matters such as the water-saving technologies that industries are using and where and how effluent is being discharged.

To regulate the discharging of effluents, the Act places the onus on industrial water users to purify their effluent to certain standards and, once purified, to return purified or treated water to its origin. At present, uniform effluent standards are prescribed by the minister in consultation with the South African Bureau of Standards. The standards comprise a general standard applied to all catchments, a special standard for specific streams and a special phosphate standard for certain sensitive catchments. These effluent standards as well as the methods of testing waste water or effluents were last updated in 1984 and specify maximum permissible concentrations for a variety of compounds.

A problem with concentration-based standards is that with the increase in the use of water for industrial purposes, an increase in the total load of pollutants that enter the water environment will still result. The fact that single effluent standards do not take into account the total load per volume of the receiving water, means that the standards do not bear any real relation to the overall pollutant load of a river. A further negative side-effect of concentration-based standards is their tendency to encourage an increase in the use of water, since such standards can be complied with if pollutants are sufficiently diluted. Another problem with uniform effluent standards is that by requiring across-the-board compliance, they do not provide any incentive for industry to reduce pollution or to discharge it into the most environmentally advantageous place.

Of all legislation controlling environmental pollution in South Africa, water pollution legislation is arguably the most developed. Provided that the lack of a definition of pollution, the problems with the definition of effluent and the many problems stemming from the inappropriate distinction between public and private water are addressed, a legislative structure for adequate control of pollution is already in place. The solution to South African water pollution problems is, therefore, not principally to be found in legislative changes, but rather in administrative changes aimed at alleviating the fragmented control over water resources and ensuring compliance with legislation.

Land-based pollution control

Although more than 90% of the 330 million tonnes of waste produced annually in South Africa is disposed of on land, nowhere is the fragmented nature of environmental law more evident than in the area of solid waste management. Control is currently exercised through at least 37 Acts of Parliament, 16 provincial ordinances and numerous local authority by-laws. This body of legislation, administered by numerous government departments, encompasses a diversity of activities which generate waste as well as many different types of waste that are produced.

In the absence of a national waste management policy or a coherent and consolidated Act, solid waste is currently controlled in a haphazard and uncoordinated manner. Legislation concerning waste historically pertained mainly to the prohibition of littering and to refuse removal, and has been administered mostly at local authority level. Apart from the Environment Conservation Act 73 of 1989, the focus of most by-laws dealing with solid waste is on the protection of public health and the prevention of nuisances related to waste. Furthermore, although many of the acts empower administrative officials to make regulations concerning waste management, in practice very few regulations have been made.

It is widely recognised that most legislation dealing with waste management is ineffective because the departments responsible for enforcing the provisions have insufficient personnel to carry out these duties. Most of the departments, therefore, rely on cooperation and/or persuasion of waste generators or disposers, supported by the threat of cancellation or withdrawal of a permit. Prosecution is a far lesser threat, especially in view of the often minor penalties which maybe incurred on conviction. To date no convictions have been obtained in terms of the Environment Conservation Act, which is the Act most capable of regulating land pollution. Furthermore, much current legislation exempts government departments from complying with legislative provisions. The potential exists, therefore, for some of the worst polluters to escape regulation entirely.

Although there is no general policy on waste management, certain initiatives and policies emanating from the Department of Environmental Affairs and Tourism, including the integrated pollution control process mentioned above, indicate that there may be a national policy in the near future.

Some progress has, however, been made regarding the development of a hazardous waste management policy. In April 1994, South Africa became a signatory to the Basel Convention on the Transboundary Movement of Hazardous Waste, and in September 1994, the Department of Environmental Affairs and Tourism published a policy on hazardous waste management in the Government Gazette for comment.

The policy was widely criticised by various sectors of society, primarily for the lack of adequate consultation with affected parties in the drafting of the policy. It was further criticised for making provision for the importation, in certain circumstances, of toxic waste and for specifically excluding workers from the ambit of the policy. In March 1996 the department convened a workshop of “stakeholders” with a view to developing a way forward for the process. The workshop suggested the formation of a sectorally representative forum which will be charged with the management of the process towards the formulation of a policy on hazardous waste management. A proposal in this regard has been forwarded to the committee for environmental coordination for approval.

In the interim, the department intends producing regulations which will set out substances which may be imported or exported subject to controls and those substances in respect of which there will be a total import/export ban.

It seems evident from the above that South Africa will in all probability have a national policy on waste management in the near future. However, the danger exists that the problem of fragmented legislation may be overshadowed by vague and overly flexible policies.

The Environment Conservation Act governs the establishment and operation of waste disposal sites. Although the whole Act falls under the auspices of the Minister of Environmental Affairs and Tourism, section 20, which deals with waste disposal sites, is administered by the Minister of Water Affairs and Forestry. To establish, provide or operate a waste disposal site, one is required to obtain a permit from the Minister of Water Affairs.

Although the Act authorises the Minister of Environmental Affairs and Tourism to make extensive regulations with regard to waste management, no such regulations have yet been promulgated. Two sets of draft regulations dealing with waste disposal were, however, issued in terms of the 1982 Environment Conservation Act, but were never promulgated. Similarly, in June 1991, another set of draft regulations, dealing specifically with waste disposal site permits, was issued. These too, however, have not yet become law. In July 1994, the minister published regulations which contain the application form which must be completed by any person who wishes to apply for a permit. This form requires a substantial degree of detail pertaining to the position of the site, water levels, weather conditions, use of adjacent land and substances to be handled.

During the latter part of 1994, the Department of Water Affairs and Forestry produced a series of three documents dealing with the minimum requirements for the handling and disposal of hazardous waste, waste disposal by landfill and monitoring of hazardous waste which are intended to provide a framework within which to enforce the permits and the conditions attached to them. The document adopts the best practicable environmental option policy by means of a threefold process: waste avoidance, correct classification of waste and requirements for the safe handling and disposal of waste.

The document states that the department also envisages the future registration of waste generators and transporters in order to implement a comprehensive waste management system. Should the department formulate legislation in this regard, responsibility and accountability will inevitably be placed on waste generators in addition to waste disposers, which, in turn, will lead to safer environmental practices and, thus, a safer working environment.

In terms of the Environment Conservation Act, the Minister of Environmental Affairs and Tourism is empowered to declare certain activities, such as waste disposal, to be “identified activities”, which would necessitate that an impact assessment be completed before permits are issued. Although the minister submitted a list of proposed identified activities for comment in March 1994, at the time of writing the list had not yet been finalised.

In spite of the procedures laid down in the Environment Conservation Act, of the estimated 900 disposal sites that exist in the country, fewer than half have been issued permits from the Department of Water Affairs. In a study conducted for the President’s Council report in 1991 on a national environmental management system, it was found that the majority of local authorities had existing pollution problems and of the sites surveyed, 62% posed a water pollution problem, 65% contributed to air pollution and 71% caused a nuisance to the community.

Clearly, waste disposal control legislation in South Africa, although inadequate, appears to be in the process of being streamlined. In addition to the principles raised above, future policy and legislation must address the problem of the many disposal sites that are operating without permits and the widespread practice of illegal dumping. This can be achieved by the enactment of more stringent penalties and more effective monitoring of compliance.

Regulation of new industrial projects by environmental law

The environmental media-based pollution legislation outlined above deals with general environmental pollution and its control. There is also a set of legal or administrative instruments designed to control the environmental impacts, in a more holistic sense, of new developments.

Environmental impact assessments

Environmental impact assessment involves the evaluation of the consequences of a proposed development for the environment. Developments may include the construction of roads, dams and factories and should also apply to the establishment of townships, industrial areas and recreation facilities. The environment to be considered is not only the natural environment but also the built environments in which people live and work. The purpose of an environmental impact assessment is to provide a methodology for the formal incorporation of environmental concerns into the decision-making process. It is, therefore, a decision-making tool but is not intended to make the decision and, therefore, has to be situated within a decision-making process.

Section 21 of the Environment Conservation Act of 1989 authorises the Minister of Environmental Affairs to identify activities which in his/her opinion may have a substantial detrimental effect on the environment. Section 22(1) of the Act prohibits the undertaking of an identified activity, except by virtue of a written authorisation issued by the minister, an administrator or a local authority or an officer designated by the minister. Section 22(2) provides that authorisation shall be issued only after consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environments. Such report is to be submitted by such persons and in such a manner as may be prescribed.

On 4 March 1994 the minister published for comment proposed regulations concerning environmental impact assessment reports and a list of activities identified in terms of section 21. These regulations were, however, never promulgated, due to comments received and the lack of clarity regarding what the role of the national department and the provinces would be in managing the environmental impact assessment process.

At the time of writing the legal position, therefore, is that environmental impact assessments are not mandatory. It is, however, likely that provincial legislatures will introduce their own legislation in this regard in the near future. In the meantime some developers are already voluntarily undertaking the integrated environmental management procedure recommended by the Department of Environmental Affairs and Tourism.

The integrated environmental management procedure

In 1984 the Council for the Environment established a committee to investigate the desirability of introducing environmental impact assessment requirements in South Africa. In 1989 the committee published a proposal for the introduction of a procedure called integrated environmental management in terms of which an environmental impact assessment would be required for all developments which may have a significant impact of the environment. In 1992 the Department of Environmental Affairs published a revised guideline document on the integrated environmental management procedure.

The integrated environmental management procedure is intended to ensure that environmental concerns are taken into account in all developmental action, from the planning of a project through to the decommissioning. The integrated environmental management procedure is based on a broad definition of the term “environment” and encompasses social, economic, cultural and aesthetic issues as well as the ecological impacts of a development. The process is also designed to include public participation and to facilitate participation by the public in decision-making. The guidelines for the presentation of the final report also make it clear that the environmental assessment and its conclusions need to be presented in such a way as to be understandable by the people who are potentially affected by an action or development. Therefore, the principles of informed decision-making, access to information, accountability for decisions taken and the public monitoring of compliance are all embedded in the procedure.

The first step of an integrated environmental management procedure is taken at a proposal development stage where all interested and affected parties need to be notified, the relevant authorities consulted, and issues of concern and alternatives identified. The second step involves the classification of the proposal into either having no significant impact, or potentially having some environmental impact. If the project may have an impact an initial assessment is done to determine whether potential impacts are serious enough to be classified as significant impacts. It may be clear from the start that there will be significant impacts. In either event, the next step is a formal environmental impact assessment which involves an extensive scoping or public consultation process and an environmental investigation.

The scoping process is probably the most important, controversial and difficult part of the procedure as it involves thorough and sincere consultation with all interested and affected parties. For the environmental impact assessment to be adequate, the views of these parties and their inputs into the decision need to be considered. The developer is expected to bear the costs of such a process as well, which may be fairly substantial depending on the scope and nature of the development. Particular attention is paid in the integrated environmental management procedure to ensuring the participation of historically disadvantaged communities.

Following from the environmental impact assessment there is an “authority review” of the assessment. This review should satisfy the relevant authority that sufficient information is provided in order to make a decision, that sufficient consultation with interested and affected parties has taken place and that the proposal complies with official requirements. The authority may then set conditions of approval which stipulate certain mitigating measures or other conditions, such as continual monitoring of impacts. A record of decisions, which is available on request to interested parties, must then be made available, something which would also apply in the event of the project not being approved. There is allowance for an appeal procedure from both the proponent and opponents of the development; however, the precise nature of this procedure is not yet clear.

The implementation of a project which has gone through a thorough integrated environmental management procedure may well be different from that initially conceptualised. An environmental management plan will probably be drawn up which will describe the implementation of the proposal and the control over this implementation. This will include the methods of management and monitoring of impacts, rehabilitation, mitigation measures, the maximisation of positive impacts and other relevant issues. The document will be a comprehensive plan describing the environmental management of the project from the start, through the life of the project and, finally, through the decommissioning stage.

A monitoring programme should be set up in the case of all approved proposals. This should assess whether the project is going as intended, whether there is compliance with the conditions set down and whether predictions of impacts were accurate.

One omission from the procedure is that it allows the developer not to undertake the public scoping and consultation aspects of the project if the nature of the project is confidential. No definition of “confidential” is given, which provides a loophole for the avoidance of a major part of the process.

The integrated environmental management procedure merely provides a procedural method for developers to follow. It does not provide answers to the measure of what a “significant” impact is or how to reconcile differing views on “significance”. The procedure further does not provide a methodology of weighing up environmental costs and benefits against each other. Thus, integrated environmental management will not on its own, even if thoroughly implemented, resolve conflicts around environmental issues or provide insights into the “correct” environmental approach to a development.

Decision-making in a context of regulatory uncertainty

In the absence of clear policy directions and ad hoc enforcement strategies by government, the extent to which South African industry incorporates environmental considerations into decision-making is widely divergent. This is illustrated by the different approaches corporations have to undertaking environmental impact assessments. Although environmental impact assessments are not mandatory, numerous large corporations routinely undertake environmental impact assessment while others, particularly small and medium-sized enterprises do not perform environmental impact assessments unless it is a requirement of a permit application. Even within corporations themselves there are different approaches for different projects, notwithstanding a general commitment to undertake environmental impact assessments. For example, an internal environmental impact assessment may be done which does not involve any public participation. This may be done as one of the initial project appraisal activities or as part of the final decision before the development is commissioned. Other environmental impact assessments clearly may involve extensive public consultation.

The extent to which environmental considerations influence industrial decisions is further determined by whether the project is a new or “greenfield” project or an extension to an existing facility. There appears to be a perception among many industries that performing environmental impact assessments for extensions or changes to existing facilities is unnecessary. On the other hand, there also appears to be a general understanding in industry that “greenfield” projects require the undertaking of environmental impact assessments which involve the public. The issue is also directly related to the project’s visibility. A high-profile project on a new site is likely to get more public reaction than a project which involves changes to an existing facility. It appears that the more likelihood there is of public reaction, the more likely it is that an environmental impact assessment will be performed.

The lack of clear regulatory requirements makes it extremely difficult for industry to synchronise its industrial planning with a consistent environmental policy framework. The complexities involved in determining environmental requirements from disparate authorities often prompts industry, particularly small and medium-sized enterprises which do not have the resources to be proactive, to proceed with the development and to face any administrative or legal obstacles as and when they arise. This approach stems more often from a lack of knowledge of permitting or other administrative requirements than from deliberate attempts to evade environmental responsibility.

The importance of environmental factors in industrial decision-making

Risking allegations of reductionism, it is submitted that the relative importance of environmental considerations in industrial decision-making is determined primarily by considerations of potential liability or negative publicity that may result from environmentally detrimental activities. Environmental considerations are generally not so much a part of industry’s production strategy as of its risk strategy. The risk of legal liability and direct prosecution is, however, relatively insignificant. As discussed, South African environmental law has been inadequately enforced.

Those industries that have introduced environmental controls in their operations have generally done so because they envisage that, in addition to the avoidance of legal liability, other benefits will be derived through the incorporation of environmental factors into decision-making. Such benefits include avoiding potentially controversial projects, particularly in the light of South Africa’s increased exposure to international markets. As local industries began entering foreign markets, they have been under pressure to take a more proactive environmental approach (see Bethlehem in this volume). This is particularly evident in the operations of international subsidiaries based in South Africa. The increasing number of due diligence appraisals being performed by South African law firms and environmental consultants is testimony to the increasing awareness of the threat of potential liability in this regard.

The way forward

We suggest that the limited ability of South African environmental law to influence industrial decision-making is both the result of a lack of administrative or procedural certainty and the result of shortcomings in the body of environmental law itself. The law needs to be improved, as well as more decisively and effectively administered.

The finalisation of a clear environmental management policy, envisaged by the consultative national environmental policy process, will provide the framework within which consistent management practices and enforcement strategies can develop. It is only once these practices and strategies are in place that industry will be able to synchronise its strategies with broader environmental management goals.

To influence industrial decision-making, environmental management policy must provide certainty in two crucial areas. First, it must provide operational certainty. In embarking on a new project or extending an existing one, industry must be aware of the legal requirements it must fulfil and must be assured of efficient decision-making and implementation of the law by the authority concerned. Rationalisation of environmental law and administration and control of environmental decision-making by a central government department would significantly assist in achieving the goal of operational certainty. Second, strategic certainty must be assured. Industry must be able to make planning decisions in line with a stable environmental policy framework which lays the basis for consistent enforcement strategies in the future.

Perhaps the single most important prerequisite for effective environmental management is to integrate environmental considerations into industrial planning processes. To some extent this may be achieved by the Development Facilitation Act. Although the principal purpose of the Act is to provide a fast-track mechanism for the release of land for development (on the basis that land is a prerequisite for any development), the Act facilitates the inclusion of environmental considerations in development decisions by requiring that in certain circumstances environmental impact assessments are to be perfomed as part of the preparation of performance criteria (essentially business plans for development at local level).

Following the example of the Act, legislation should be put in place making environmental impact assessments mandatory in all development projects, involving a set of certain defined processes or activities, including both “greenfield” developments and expansions of existing operations. Integration may be further assisted by government by the merging of planning departments with environmental departments at provincial and local level. Environmental criteria may then be taken into account when considering zoning applications, planning requirements and permitting procedures — effectively requiring industry to integrate environmental consideration into their strategic decisions. Liability should be imposed on non-compliance with environmental management requirements, since experience shows that it is the threat of substantial liability that has the most influence on industrial strategy. It is only through the use of such measures that environmental law will require industrial strategy to operate in tandem with broader environmental management policy goals.

References

Loots, C., “Distribution of responsibility for environmental protection”, unpublished paper, 2 February 1996.

Loots, C., “Making environmental law effective”, South African Journal of Environmental Law and Policy, 1994.

Loots, C., “Pollution control in South Africa”, unpublished note.

Petrie, J.G., et al, “Air pollution” in Fuggle, R.F. and Rabie, M.A., Environmental Management in South Africa, Juta & Co. Ltd, Cape Town, 1992.

Department of Water Affairs and Forestry, “Water law principles: document for discussion”, 1996.

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