VIRTUAL RESEARCH ASSISTANT PROJECT
RESEARCH BRIEF PROVIDED:
An exception raised to a claim for compensation for loss under s 34 of the Environment
Conservation Act 73 of 1989.
The issue is whether s 34 is limited by s 37 of the ECA or s49 of the National
Environmental Management Act or not. It appears that statutory provisions limiting
liability provide a defence to the wrongfulness component of a delictual claim and do not
limit liability in respect of a claim where there exists a statutory entitlement to
compensation (such as s 34). See Minister of Justice and Constitutional Devt v X 2015 (1)
SA 25 (SCA) at para 41 ff and Corbett CJ in Simon's Town Muni 1993 (1) at 195 I-J. I am
looking for further support for the proposition either in other statutes where there exists
such an entitlement to claim compensation or from other jurisdictions such as the UK.
COUNTRY
DATE COMPLETED
South Africa
25 March 2015
1. From the search that I conducted, it does not appear as if the UK jurisprudence has
similar cases. Most of the cases are on determining whether a duty of care arises from
a statutory obligation such as the Human Rights Act. This is not the issue at hand. The
question at hand is whether section 37 nullifies the provisions of section 34,
particularly the statutory right to claim compensation under the Environmental
Conservation Act.
2. In my view, referring to the UK or any other foreign jurisdiction to advance the legal
proposition taken in Minister of Justice and Constitutional Development v X 2015 (1)
SA 25 (SCA) is a noble idea but in the absence of similar cases, this question can be
addressed from two stand points, which in my view is even more powerful than
referring to comparative foreign case law. The first stand point is that of statutory
interpretation and the second is that of constitutional interpretation of Statutes.
3. From a statutory interpretation point of view, it is a rule of law that statutes must be
interpreted purposively but without departing from the grammatical construction of
the provisions of the Act.1 In actual fact, the entry point when interpreting statutory
provisions is the grammar or language used in formulating the provision.2 Section 34
of the Environmental Conservation Act is titled “Compensation for loss” and gives
the land owner (or real right holder) a statutory right to claim compensation for the
loss suffered as result of the imposed limitations on the land usage. Section 37 of the
same Act is titled “Restriction on liability” and this gives immunity to the State and
public officers against claims for compensation where loss has been caused as a result
of their exercise of power in terms of the Act but such exercise of power or
performance was done in good faith.
1
See Heydon’s case (1584) 3 Co Rep 7a (76 ER 673)
2
Ibid
4. Although the both section 34 and 37 of this Act appear as if they deal with issues of
compensation, a closer look at the wording of the two sections reveal that they seek to
regulate two different types of rights to compensation. Section 34 gives and regulates
the exercise of a statutory right to claim compensation while section 37 regulates the
right to claim delictual claim for compensation which arise from common law.
5. A closer look at the wording of section 34 shows that it provides for a statutory right
to compensation and through section 34 (1)-(3) the provision regulates how that
compensation can be obtained. Section 34 (1) in particular, regulates how the right to
compensation will arise and that is if;
I.
II.
One is a land owner or holder of a real right in respect of the land concerned
The State or its agency has imposed limitations on the land against which the
person holds ownership or real rights
III.
The limitations imposed has resulted in loss
6. On the other hand, section 37 states that there shall not be liability for any loss caused
by the exercise of power or performance in terms of this Act where such power or
performance was done in good faith. This means, where the power was exercised in a
manner that proves wrongfulness, one would be entitled to compensation. Delictual
right to compensation require proof of negligence as envisaged under section 37.
Statutory right to compensation does not require proof of negligence but proof that the
circumstances fit the statutory requirements enlisted under section 34 for one to be
eligible to claim compensation. This shows that section 37 therefore regulates
compensation claims brought about through delictual action, while section 34 seeks to
deal with claims brought about on the basis of the statutory rights which is
specifically provided for under section 34. In that regard, section 37 should not be
interpreted to mean that it limits the implications of section 34 but it simply limits the
delictual right to claim which arises from common law and not section 34 of the Act.
7. Furthermore, when interpreting statues, the ‘mischief rule’ is often used to deduce the
purpose of the different statutory provisions.3 Applying this mischief rule, it becomes
clear that the two provisions are informed by different aspirations or persuasions.
Section 34 is inspired by the need to provide recourse to land owners or real right
holders who would suffer loss as a direct consequence of limitations imposed upon
their land in terms of this Act. Through section 34 (2) and (3), the provisions under
section 34 specifically regulates how this claim for compensation will be exercised
and puts guidelines as to the amount that will be claimed. On the other hand, section
37 is inspired by two things. First, section 37 is inspired by the need to protect public
officers against personal delictual suits arising from the consequences of their bona
fide actions in implementing this Act. Second, section 37 is also inspired by the need
to protect the State against an avalanche of uncapped delictual claims potentially
arising from the implementation of the Act, other than just the loss arising from the
imposition of limitations on the land as envisaged under section 34. Those are two
different aspirations that must not be conflated because whilst both of them are
concerned about compensation but they regulate compensation claims arising from
two different sources of law.
8. Lastly on the issue of statutory interpretation, it is a basic rule of statutory
interpretation that an interpretation that avoids conflict between provisions of the
same Act must be preferred provided that such interpretation makes logical sense and
does not defeat the purpose of the Act itself. In line with that principle, the
interpretation that section 34 is not in conflict with section 37 must be preferred over
3
See Santam Insurance Ltd v Taylor (434/1983) [1984] ZASCA 139. See also Heydon’s case (1584) 3 Co Rep 7a
(76 ER 673)
the interpretation that section 37 extinguishes section 34. In any case, it would be
unthinkable to imagine that when the legislature enacted this law, they sought to
provide for a statutory right to compensation through section 34 and at the same time
sought to take away the same right through section 37 of the same Act. Section 34 is
about a statutory right to compensation and regulation of the same while section 37 is
about regulation of claims arising from the common law delictual right to
compensation.
37. Let me now turn to the issue of constitutional interpretation of the Act. Acts must be
interpreted in conformity with the Constitution, particularly the provisions of the
Declaration of Rights.4 The Declaration of Rights provides for the right to property
under section 25 of the Constitution, and this right implies the right to derive material
benefit from the usage of the property. Furthermore, section 25 (2) (b) of the
Constitution prohibits deprivation of property without payment of compensation.
Limitations on land usage will inevitably result in loss and will be tantamount to an
infringement of section 25 right to property. On the other hand, the environmental rights
under section 24 bestows upon the State the constitutional duty to protect the
environment, and this may mean imposing limitations contemplated under the
Environmental Conservation Act. A balance must therefore be struck between the need
to respect property rights and the constitutional obligation under environmental rights.
Section 34 provides for a mechanism to strike this balance by giving affected land
owners or real right holders a statutory right to claim compensation. To suggest that
section 37 extinguishes or limits the section 34 statutory right to compensation will be
tantamount to imposing disproportionate restrictions on property rights, particularly
section 25 (2) (b) constitutional right to receive compensation and this kind of an
4
Section 39 (2) of the Constitution of South Africa
interpretation grossly offends section 36 limitation clause under the Constitution. An
interpretation that looks at section 34 and section 37 as co-existing with each other and
dealing with different rights to compensation is in line with the need to strike a balance
between the constitutional obligation to protect the environment and the equally
important constitutional obligation to protect property rights. In any case, it is well
accepted position by the South African courts that
“Policy considerations of fairness and reasonableness have to be taken into account
when imposing a duty of care and ultimately liability to make good harm suffered by a
claimant”5
5
See Steenkamp NO v Provincial Tender Board of the Eastern Cape (CCT71/05) [2006]