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Africa: Environmental litigation triggers compliance
06 February 2009
Compliance issues have long been associated with corporate affairs and rarely the environment. But that is all changing in South Africa as environmental issues start to dominate the agenda.
Matters relating to compliance very rarely deal with the environment or the contribution to the degradation of the environment by the board of directors on which one serves or the company one runs. However, from an environmental point of view, the tide is turning in South Africa and, as a jurisdiction, we are experiencing an increase in environmental litigation, which is giving rise, in turn, to an exponential growth in the law dealing with compliance with environmental law and the corresponding obligations that one must meet and of which one must be aware in the ordinary course of business.
A number of recent judgments by both the South African High Court and the Constitutional Court have shed a great deal of light on the attitude that our courts have adopted and will be adopting to the environment and sustainable development.
In this regard, a right to an environment that is not detrimental to one's health or well-being is found in the Constitution of the Republic of South Africa, 1996 ("the Constitution"). In addition to this right, obligations are imposed upon the State to ensure that development that occurs is sustainable and legislation exists to support sustainable development.
Therefore, in a country faced with a myriad of development priorities, development must be seen and planned within the context of the environment. Consequently such development must be sustainable development as it is understood in environmental law.
In a very recent decision by the Constitutional Court in MEC Department of Agriculture, Conservation & Environment an Another v HTF Developers (Proprietary) Limited (Case CCT32/07, decided on 6 December 2007), the Constitutional Court reiterated its views on the interaction between sustainable development and the right to an environment that is not detrimental to one's health or well-being.
The usefulness of the HTF decision is that it assesses the statutory framework that governs the environment in South Africa and complements and gives content to the right to an environment that is not detrimental to one's health or well-being. The judgment by Skweyiya J in the HTF decision also provides a most useful overview of the common law relating to the protection of the environment in terms of the Constitution.
The HTF decision is concerned primarily with the interaction of two sections in the Environment Conservation Act No. 73 of 1989 ("the ECA"), which allowed the provincial Department for Agriculture, Conservation & Environment in Gauteng ("the Department") to prevent the development of a housing estate as a result of the Department's understanding that the development threatened the existence of certain Red Data species and naturally existing corridors that are formed by naturally formed geological ridges in Gauteng.
Whilst the parties in the HTF decision argued about the application of certain administrative law rights to the sections referred to in the ECA which are not relevant for the purposes of this article, the Constitutional Court, hearing an appeal from the Supreme Court of Appeal on the matter, dealt with the manner in which South African courts should approach environmental law. It is this approach that forms the subject matter of this article.
The Constitutional Court accepted that at the top of an environmental law hierarchy lies section 24 of the Constitution. Section 24 provides that "Everyone has the right –
(a) to 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 –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development."
The next legislative rung in this hierarchy is formed by the National Environmental Management Act No. 107 of 1998, as amended ("NEMA").
The Constitutional Court has held that section 2 of NEMA sets out "a series of principles that give effect to the understanding that the environment is a composite right, which includes social, economic and cultural considerations in order to ultimately result in a balanced environment."
In this regard, the Constitutional Court accepted a formulation by the Johannesburg High Court in a decision of BP Southern Africa (Proprietary) Limited v MEC for Agriculture, Conservation, Environment & Land Affairs 2004 (5) SA 124 (W).
Therefore, the principles in NEMA, primarily in section 2 of NEMA, inform directly the manner in which decision making processes should be made in respect of issues that deal, directly or indirectly, with the environment. This does not onl apply to the decision-making processes of a court but also to the decision-making processes of a court but also to the decision making processes of a board of directors or a company in its day-to-day affairs in respect of any development that it intends to take that may have an impact upon the environment.
In a prior decision to the HTF decision, the Constitutional Court, in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation & Environment, Mpumalanga Province & Others 2007 (6) SA 4 (CC); 2007 (10) BCLR 1059 (CC), held that NEMA, in the form of section 2, "promote[s] an approach to the environment that is consistent with international norms, including a consideration of all relevant interests to the process of environmental management." Therefore, a company that embarks upon a process of environmental management must base its management decisions squarely on the provisions of section 24 of the Constitution as informed by section 2 of NEMA.
In relation to decision making about the way in which the environment is impacted upon by development, our courts are taking a more proactive approach that is based less on technical jurisprudential and legal points and more on an equitable approach to the interpretation of the legislation concerned.
This approach is based on an emphasis of what it is that the legislation intends to achieve i.e. environmental protection as opposed to what the legislation says i.e. a pedantic interpretation of the words and grammar used in the legislation: in this regard, the Constitutional Court, in the HTF decision, stated that "[w]here more than one right comes into play, they must be appropriately balanced by the courts, which have a vital role to play in environmental matters in pursuit of sustainable development."; the Constitutional Court, in the Fuel Retailers decision in the HTF matter, endorsed its previous formulation of the manner in which courts should treat environmental rights in the Fuel Retailers decision as follows:
"The role of the courts is especially important in the context of the protection of the environment and giving effect to the principles of sustainable development. The importance of the protection of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights contained in the Bill of Rights; indeed, it is vital to life itself.
It must therefore be protected for the benefit of the present and future generations. The present generation holds the earth in trust for the next generation. This trusteeship position carries with it the responsibility to look after the environment. It is the duty of the court to ensure that this responsibility is carried out." (emphasis added).
If one accepts the approach by the Constitutional Court to the interpretation of the environmental rights contained in the Constitution and the objectives in NEMA, then one is able to appreciate the decision that the Constitutional Court comes to in relation to another important constitutional principle - the right to be heard before a decision affecting one is made by an administrator.
In the HTF case, because the Department had decided, in terms of section 31A of the ECA, to prevent HTF from proceeding with its development, HTF contended that it was due to be placed in a position where it was able to make representations before the Department decided to prevent it from developing.
This right, HTF contended, accorded with the right to procedurally fair administrative action as recognised in South African constitutional law.
The Constitutional Court held that in certain circumstances it is inappropriate for an administrator to request representations from a party affected by a particular decision especially where the administrator is concerned with the protection of the environment "in light of the serious harm already caused and the threat of continuing harm" (at paragraph 49 of the HTF decision).
Therefore, the Constitutional Court, in the context of a threat to the environment, is of the view that other constitutional rights may be suspended or truncated in order to protect the environment:
"...the flexibility afforded by section 31A enables organs of State to react to situations of potential or actual environmental damage under a range of different timeframes, including those classified as urgent, are constrained by the corresponding procedural fairness requirements. All of these factors lead to the conclusion that the exercise of power in terms of section 31A of the ECA should not be constrained by the procedural requirements of section 32 of the same Act." (at paragraph 53 of the HTF decision)
It is therefore not for a company or a board of directors, as the case may be, to presume that procedural requirements, which exist in a number of pieces of environmental legislation, by way of example: 28 of NEMA and the public participation provisions in section 57 of the National Environmental Management: Air Quality Act No. 39 of 2004, will protect actions, omissions or assaults on the environment and wind-up the regulatory authorities in technical arguments relating to procedural fairness and mis-timed hearings.
Such technical arguments hold less or no sway with courts in the wake of the HTF decision. Development decisions that do not accord with environmental law may attract adverse attention from a court. Simply put: environmental law must play a pivotal role in the decision making process that underpins any development.
The decisions by the highest court in the land, clearly indicate that those regulatory authorities charged with the protection of the environment and ultimately being the legal wards of section 24 of the Constitution, may act swiftly, appropriately and lawfully even in circumstances where, on the face of legislative provisions, procedures are contemplated that apparently inhibit such swift behaviour.
It is therefore no longer the fulfilment of development prerogatives that will determine the justifiability of a decision but rather the principles of environmental management and sustainable development priorities upon which that decision is based. You are warned.
Neil Kirby is a Director at South African law firm Werksmans
