Judicial Enforcement of Environmental Rights: Case Studies and Legal Measures

Remedies and Enforcement Judicial Workshop on Environmental Rights Facilitated by Melanie Murcott, Senior Lecturer, University of Pretoria 15 April 2016

Court orders compelling industry to comply with administrative orders made in terms of environmental legislation Harmony Gold 2013 (Harmony Gold ordered to comply with a direction issued in terms of the National Water Act, directing it to take remedial measures to respond to water contamination from mining) Harmony Gold Mining Company Ltd v Regional Director:Free State Department of Water Affairs and Others (971/12) [2013] ZASCA 206; [2014] 1 All SA 553 (SCA); 2014 (3) SA 149 (SCA) (4 December 2013) (available at http://www.saflii.org/za/cases/ZASCA/2013/206.html)

Court orders compelling the state to take administrative measures Compelling the state to comply with its statutory duties to make plans to control and monitor alien and invasive species and to appoint the necessary people within 6 months (Kloof Conservancy 2014 regulations on alien and invasive species, one of the greatest threats to our biodiversity) Kloof Conservancy v Government of the Republic of South Africa and Others (12667/2012) [2014] ZAKZDHC 60 (22 October 2014) (available at http://www.saflii.org/za/cases/ZAKZDHC/2014/60.html)

Court orders compelling the state to take administrative measures Compelling the state to compel polluters to take remedial measures (Hichange 2004) In the light of all the aforegoing, Leach J ordered as follows: 1. That the state respondent is to direct the polluter under s 28(4) of the National Environmental Management I Act 107 of 1998 to investigate, evaluate and assess the impact of gases emitted from the first respondent's tannery at erf 516 Markman Township, Port Elizabeth and the effluent treatment plant there situate, to report thereon, and to take such further steps in terms of s 28(4)(b), (c) or (d) as may be necessary in the light of the findings of such investigation, evaluation and assessment so as to ensure that: (a) The polluter consistently complies with the registration certificate issued to it in terms of the Atmospheric Pollution Prevention Act of 1965; (b) The polluter consistently complies with the provisions of the National Environment Management Act 107 of 1998. 2. That the state respondent and polluter, jointly and severally, the one paying the other to be absolved, pay the applicant's costs of this application. That the applicant is to pay the costs of the second respondent up to the morning of 11 October 2001. Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts Products and others 2004 (2) SA 393 (E)

Court orders for access to information Arcelor Mittal v Vaal Environmnetal Justice Alliance 2014 Navsa JA Corporations operating within our borders, whether local or international, must be left in no doubt that in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced. Company Secretary of Arcelormittal South Africa and Another v Vaal Environmental Justice Alliance (69/2014) [2014] ZASCA 184; 2015 (1) SA 515 (SCA); [2015] 1 All SA 261 (SCA) (26 November 2014) (available at http://www.saflii.org/za/cases/ZASCA/2014/184.html)

Court orders to review and set aside administrative decisions Kruger 2015 Order to review set aside the moratorium on rhino horn trade arising from a failure to comply with requirements of procedural fairness Kruger and Another v Minister of Water And Environmental Affairs and Others (57221/12) [2015] ZAGPPHC 1018; [2016] 1 All SA 565 (GP) (28 November 2015) (available at http://www.saflii.org/za/cases/ZAGPPHC/2015/1018.ht ml)

Court orders to compel compliance with constitutional obligations Mavundla J: State was ordered to provide temporary potable water in line with regulations 3(b) of the regulations relating to compulsory national standards and measures to conserve water (GN 509 in GG 22355 (8 June 2001)) to the residents of Silobela, Caropark and Carolina Town in Carolina, Mpumalanga within 72 hours of the order of this court; State was directed to engage actively and meaningfully with the communities regarding: the steps being taken to ensure that potable water can once again be supplied through the water supply services in Silobela where, when, what volume, and how regularly temporary water will be made available in the interim; State was ordered to report to this court within one month of this court order as to the measures that have been taken to ensure that potable water is supplied through the water services in Silobela, Caropark and Carolina Town in Carolina, Mpumalanga Federation for Sustainable Environment and Others v Minister of Water Affairs and Others (35672/12) [2012] ZAGPPHC 128 (10 July 2012) (available at http://www.saflii.org/za/cases/ZAGPPHC/2012/128.html) Federation for Sustainable Environmnet v Minister of Water 2012

The imposition of criminal sanctions in terms of environmental legislation Lemthongthai 2014 (rhino horn trade criminal conviction under biodiversity and customs and excise legislation and 30 year sentence in High Court by Tskoka J and reduced to 13 years in the SCA in respect of killing of 26 rhino) Lemthongthai v S (849/2013) [2014] ZASCA 131; 2015 (1) SACR 353 (SCA) (25 September 2014) (available at http://www.saflii.org/za/cases/ZASCA/2014/131.html) Blue Platinum 2014 (statutory director criminal liability imposed under NEMA for environmental degradation caused by a mine in the Magistrate s Court) S v Blue Platinum Ventures and Matone, Samuel Maponya (Sentencing Proceedings: Unreported, Naphuno Regional Magistrates Court Case No. RN126/13 9 January 2014)