Obligations placed on local
government by environmental law and
the consequences of failing to comply
Willemien du Plessis
Conference on Local Government Law
Port Elizabeth
5-6 November 2014
• Based on chapter 3 in
• Du Plessis A (ed)
Environmental Law and
Local Government in South
Africa
• (2014 Juta) to be published
•
•
Chapter 3:
Nel J, Du Plessis W and Du Plessis A
"Instrumentation for local environmental
governance"
1
Local government acts as
• Regulator
• Regulated
2
Section 24 Constitution
Regulated
•
•
•
24. Everyone has the right to
(a) an environment that is not harmful to their
health or well-being and
(b) to have the environment protected, for the benefit
of present and future generations, through
reasonable legislative and other measures that –
prevent pollution and ecological degradation;
– (ii)
promote conservation; and
– (iii)
secure ecologically sustainable development
and use of natural
–
(i)
• resources while promoting justifiable economic and social
development.
Regulator
3
What is the environment?
Whose reponsibility?
• “environment.’ means the surroundings
within which
National?
humans exist and that
Provincial?
• are made up of—
Local?
– (i) the land, water and atmosphere of the earth:
– (ii) micro-organisms, plant and animal life:
– (iii) any part or combination of (i) and (ii) and the
interrelationships among and between them: and
– (iv) the physical, chemical, aesthetic and cultural
properties and conditions of the foregoing
– that influence human health and well-being
– S 1 National Environmental Management Act 107 of 1998
4
REGULATOR
5
Le Sueur v Ethekwini Municipality (9714/11)
[2013] ZAKZPHC 6 (30 January 2013)
•
•
•
•
•
•
"there is nothing in the Bill of Rights itself to suggest that the
protections offered by Section 24 of the Constitution are only binding
on National and Provincial spheres of Government.
Quite evidently these obligations apply to all three spheres of
Government.
Municipalities may not legislate in conflict with Section 24 of the
Constitution.
It is evident that Section 152(1)(d) of the Constitution requires that
Local Government “promote a safe and healthy environment”.
Together with the reference in Section 24 of the Constitution to
reasonable legislative and other measures to promote ecologically
sustainable development, justifiable economic and social
development as well as the promotion of conservation is also binding
on a Municipality when it exercises its powers and performs its
functions as set out in Parts B of Schedules 4 and 5 of the
Constitution and
those allocated to it in terms of Section 156(1)(b) of the Constitution
and Section 156(4). "
6
Le Sueur v Ethekwini Municipality
•
•
•
"Section 156(1)(b) provides that a Municipality has the executive
authority and the right to administer not just matters listed in Parts B
of Schedule 4 and 5 but also:“Any other matter assigned to it by National or Provincial legislation”.
Accordingly, Section 156(4) of the Constitution provides indications
that even matters reserved for National and Provincial legislative
authority in Parts A of Schedules 4 and 5 may be dealt with at
Municipal level. It provides:– “The National Government and Provincial Governments must assign to a
Municipality, by agreement and subject to any conditions, the administration of a
matter listed in Part A of Schedule 4, or Part A of Schedule 5 which necessarily
relates to Local Government, if:– The matter would most effectively be administered locally; and
– The Municipality has the capacity to administer it”
•
Section 156(5) provides that “a Municipality has the right to exercise
any power concerning a matter reasonably necessary for or incidental
to, the effective performance of its functions.”
7
Le Sueur v Ethekwini Municipality
•
•
•
•
•
"It is apparent that although matters relating to the environment may
be said, in terms of the Constitution, to be the primary concern or
sphere of National and Provincial responsibility that Local
Governments in the form of Municipalities are in the best position to
know, understand, and deal with issues involving the environment at
the local level.
The first respondent correctly submits, in my view, that the framers of
the Constitution did not intend thereby to allocate legislative powers
amongst the three spheres of Government in hermetically sealed,
distinct and water tight compartments."
EVEN
"[26] In addition, Section 2(4)(f) of the Local Government; Municipal
planning and Performance Management Regulations published on 24
August 2001 requires spatial development frameworks reflected in an
integrated development plan to:“contain a strategic assessment of the environmental impact of the
spatial development framework”.
8
Local Government various instruments
9
AS REGULATED
10
As regulated: Local governments
• need to know the applicable law;
• need to manage own environmental
authorisations, permits and licences;
• need to ensure and assure compliance to all
applicable environmental law; and
• avoid prosecution and litigation
11
1. Know the law
• Important to know which laws apply to
– Activities
– Products
– Services
• Who the regulatory agencies are
• How the laws apply to the municipality
• Possible instrument: Legal register
12
Complexity of SA Environmental Law
13
Activity
Know the law
Specific
environmental
duty
Undertaking of any activity listed under s 24 of
NEMA
Authorisation
required
X
Establishment and management of communal
and small waste facilities
X
X
Undertaking of waste management activities
listed in the NEM:WA
X
Commencement, undertaking or conducting of a
waste management activity
X
X
Cutting, collection, removal transportation, and
disposal of indigenous trees or natural forests
Prohibition of the use of asbestos and materials
containing asbestos
Preparation and maintenance of firebreaks when
a veld fire originates on land belonging to the
municipality.
Municipality to consult with neighbouring
owners before preparing a firebreak
Permission required
X
Control of the spreading of weeds on municipal
land.
Specific measures applying to waste tyres,
especially the measures pertaining to the reuse,
storage, stockpiling and recovery of these tyres
Agreement/lease to
be concluded
X
X
X
14
Activity
Management of dams with a safety risk
Management of water services works and
purification of waste water
Generation, transmission and distribution of
electricity
Supply of electricity reticulation services
Energy efficiency standards pertaining to street
lighting and lighting in buildings
Construction of gas transmission, storage,
distribution, liquefaction or re-gasification facilities
or the operation of such facilities
Specific
environmental
duty
Authorisation
required
x
X
X
X
X
X
Undertaking any activity listed in terms of the
NEM:AQA
X
Activities in the coastal zone
Occupation of, construction, building, erection of
any building, road, barrier or structure on or in
coastal public property
X
Claiming of an exclusive right to use or exploit any
specific coastal resource in any part of, or that is
derived from coastal public property
Erection of bathing houses or tents, beach shelters,
tea rooms, construction or improvement wharves,
piers, jetties or landing stages, or the carrying out of
any work of public utility
Designation of an area as a recreational area where
Agreement/lease to
be concluded
X
X
(Concession)
X
Permission required
Polluter pays principle
•
•
S 19 National Water Act and s 28
of National Environmental
Management Act
Even if the Municipality is not the
polluter it may still be held liable!
In June 2014, three babies died in Bloemhof
from drinking contaminated water. It was a
national tragedy. The municipal manager
resigned ahead of two criminal lawsuits, the
mayor was fired. The Minister of Water
Affairs Edna Molewa promised swift
intervention and R20 million to fix the
problem. But during the same time – in fact,
up until last week - more than eleven infants
have died in a tiny spot on the map called
Biesiesvlei, close to a slightly larger spot on
the map called Sannieshof. But there is no
national intervention – yet.
Daily Maverick 9 July 2014
16
Example: s 28 NEMA
•
S 28 – Duty of care & Polluter pays principle
•
(1) Every person who causes, has caused or may cause significant
pollution or degradation of the environment must take reasonable
measures to prevent such pollution or degradation from occurring,
continuing or recurring, or, in so far as such harm to the environment
is authorised by law or cannot reasonably be avoided or stopped, to
minimise and rectify such pollution or degradation of the
environment.
•
•
•
•
•
(1A) Subsection (1) also applies to a significant pollution or
degradation that(a) occurred before the commencement of this Act;
(b) arises or is likely to arise at a different time from the actual
activity that caused the contamination; or
(c) arises through an act or activity of a person that results in a
change to pre-existing contamination.
[Sub-s. (1A) inserted by s. 12 (a) of Act 14 of 2009.]
17
S 29 NEMA (cont)
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(2) Without limiting the generality of the duty in subsection (1), the
persons on whom subsection (1) imposes an obligation to take
reasonable measures, include an owner of land or premises, a person
in control of land or premises or a person who has a right to use the
land or premises on which or in which(a) any activity or process is or was performed or undertaken;
or
(b) any other situation exists,
which causes, has caused or is likely to cause significant pollution or
degradation of the environment.
Strict liability!!!!
Similar measures
in terms of
National Water Act
18
2. Specific environmental duties, e.g.
•
to appoint suitably qualified staff
– E.g. a pest control operator who applies herbicides and pesticides must be
registered in terms of ss 3 and 7bis of the Fertilizers, Farm Feeds, Agricultural
Remedies and Stock Remedies Act 36 of 1947; air quality officer - NEMAQA
•
•
•
to register such staff with environmental authorities of the provincial and
national spheres (e.g. s 62(2)(b) of the Water Services Act)
Municipalities may also be required to keep environmental records
and to perform in terms of specific norms and standards such as:
– air quality standards issued in terms of the National Environmental Management
Air Quality Act 39 of 2004 (NEM:AQA);
– water quality standards set by the Minister in terms of the Water Services Act
108 of 1997;
– national standards to control noise
•
•
•
•
May also be required to conduct prescribed monitoring (s 9 Water Services Act)
submit regular performance reports (s 34(2) NEMAQA; s 7 & 9 NEMWA)
and establish and maintain public communication
NEMA empowers the competent authority to request a defaulting
municipality to submit an environmental audit report on the actual or
potential harm to the environment.
19
3. Manage environmental authorisations,
permits and licences
•
•
Detailed and specific conditions
The validity of the authorisation needs to be managed and maintained in
terms of:
–
–
–
–
•
•
permit validity and environmental performance time frames;
changes to the name of the legal person who is the licence holder;
changes to the nature of the authorised activity, process or facility; and
the ability of the licensee to sustain compliance to the conditions of the
authorisation.
Instrument: e.g. dedicated environmental authorisation register together
with authorisation management plans.
The persons in charge of the regulated activity should also adopt and use a
management of change (MOC) control procedure to ensure that incremental
changes do not over time cause any breaches of the conditions of
authorisations.
20
4. Compliance management
•
•
It is similarly important for municipalities to know whether they are indeed
compliant with the applicable environmental law and what needs to be done
to objectively demonstrate sustained compliance.
Instruments to achieve, maintain and demonstrate compliance with the
requirements of applicable South African environmental law are
– environmental management or compliance plans,
– legal compliance audits and inspections, as well as
– performance monitoring.
•
•
The integrity of both internal legal compliance audits and auditor
competence can be quality assured in terms of the ISO 19011: 2011
Guidelines for Auditing Management Systems.
The outcomes of a legal base-line audit are normally reported in a formal
audit report.
21
Non-compliance
•
Directive – in terms of legislation e.g.
– S 19 National Water Act ; S 28 of NEMA
– Non-compliance – fine or imprisonment or both
•
If did not comply with environmental impact assessment requirements
– Administrative fine
– S 24G rectification application
– Possible prosecution
•
Personal criminal liability & Corporate liability (e.g. as municipal
manager)
– Again – fine and imprisonment / both
– S 48 of NEMA that protected municipalities against criminal prosecution has
been repealed.
– Although ch 3 of Constitution states – avoid litigation – see more and more cases
where municipal managers (and corporate directors) are brought to trial
– If fine – tax payer that bears the brunt of the fine and the possible "pollution" –
therefore necessary to rather try to remedy or use instrumentation to prevent
pollution or degradation to environment
22
How to avoid prosecution?
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First remember:
In terms of NEMA – trustee of
the environment – s 2
In terms of s 28 of NEMA –
duty of care
To prevent pollution and
environmental degradation
And to take reasonable
measures
23
Integration of decision-making &
need for cooperative governance
24
Other reasonable measures
•
•
•
•
•
•
a) municipal integrated development
planning (IDP);
b) performance management;
c) budgeting and funding;
d) supply chain management;
e) human resource management; and
f) internal auditing
25
National regulator/
role/ role players /
instruments of
relevance
E.g. IDP
Act
Water Services Act
NEMWA
NEMBA
NEMBA
NEMAQA
Provincial / district level
regulator / role/ role
players /
Instruments of
relevance
SMP to be
developed by
municipality
SMPs
relationship with
IDP
Section(s)
National Department of
Environmental and
Water Affairs
Provincial offices of Water
Affairs
Water services
development plan
Part of IDP
process / draft
separately
11(4)
To be approved by MEC
All three spheres of
government has the mandate
depending on category of
waste
Integrated waste plan
To be included
in IDP
39
National biodiversity
framework with norms
and standardsmunicipality to comply
with norms and
standards
No specific SMP
No specific SMP
but IDP must be
aligned with and
should
incorporate norms
and standards
Monitoring, control and
eradication plan for
invasive species on land
under their control
Include in IDP
Air quality
management plan
Include in IDP
12-16
South African Biodiversity
Institute (SANBI)
76(2)(b)
7 and 9, 15-16
National air quality
framework & national
standards
District Municipalities
In conclusion
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•
•
As Regulator – local government may ensure that there is an
environment that is not detrimental to health and well-being
As Regulated – ensure that does not create an environment that is
detrimental to health and well-being
How?
– Use instruments available to local government – adapt existing instruments to
also ensure that decision-making takes the environment into account
– Appoint competent staff / train staff in environmental legal compliance
– Make use of auditing – King III reporting expects triple bottom line reporting –
Auditor-General already audits compliance to environmental law
– Ensure that contractors are also aware of environmental laws and need for
compliance (e.g. illegal dumping, medical waste, hazardous waste etc)
– Make use of incentives to staff, marketing etc (Green Drop, Blue Drop etc)
– ENSURE COMPLIANCE TO THE LAW
– Avoid criminal and civil litigation ……
26
Thank You!