Mariam Mayet
The draft Environmental Management Bill (“Putting the people in charge”, Monitor, July 17 to 23) marks an extremely important departure from previous environmental policy and legislation.
Unlike most current environmental legislation, which has been criticised for being a paper tiger, this Bill contains provisions that empower citizens to take up the cudgels for the protection of the natural and human environment.
The Bill widens the scope in terms of which affected individuals, communities, organisations and groups may seek legal redress. It allows legal action to be instituted in the interests of protecting the environment, and extends the provisions on legal standing in the Constitution.
The prospect of having costs granted against a person seeking redress in the interest of protecting the environment is done away with. The Bill advises the courts not to award costs against a complainant where legal action has failed if such action is brought in the interests of the environment.
The new law would be a marked improvement on the relevant provisions of the draft Open Democracy Bill. In its current form, the Open Democracy Bill excludes access by citizens to environmental information held by private bodies. It also contains a litany of exceptions to access to information held by government bodies, and in so doing runs the risk of excluding the most basic information required to protect the environment.
While the Environmental Management Bill does contain exceptions to access to environmental information held by organs of state, they have been kept to the barest minimum and are designed not to impede meaningful access to information.
The Bill also refines our current law relating to private prosecutions. It allows private prosecutions of those who transgress legislation designed to protect the environment by allowing such prosecutions to be instituted in the public interest or in the interest of protecting the environment. There is a fast-track mechanism for instituting prosecutions.
It would no longer be more profitable for transgressors to pay fines than comply with environmental legislation. Courts could order transgressors to pay out the value of any advantage gained or likely to be gained as a result of their transgression.
The courts would also have the discretion to order transgressors to pay the costs of a prosecution and of the investigation. The costs of the investigation may include expert evidence and the securing of technical information, lab analysis and so forth.
Finally, the Bill creates a duty of care that places a rather onerous duty on every person who “knows or reasonably suspects that his actions or omissions may cause harm to the environment”, through the taking of “every possible reasonable measure to prevent harm to the environment from occurring, continuing or recurring”. The sweeping nature of this provision may make it impractical.
The Bill is not without controversy, and will not find favour with all sectors of society. It does, however, give teeth to environmental legislation and has the potential to affect the lives of all South Africans.
Mariam Mayet is a specialist in environmental policy and law