A view of the targeted area for the Xolobeni Mineral Sands project on the Wild Coast.
NEWS ANALYSIS
South Africa’s environmental laws were created in a time of great hope, when the country was being made anew after the 1994 elections. They are, by their wording, aspirational. Apartheid laws discriminated against black people by forcing them to live in broken environments. The future would be different, said the new laws.
Section 24 of the Constitution was the envy of the world. Environmental rights not promised anywhere else in the world were codified. In Latin America, countries took it and went a step further, creating the environment (Pachamama) as a legal entity with its own rights. This allows anyone to take a case to the courts on behalf of the environment.
But that initial section 24 promise has fallen apart in South Africa. Mining and development regularly trump environmental rights. Those rights are not protected in practice because the groups tasked with their oversight either do not function or have been castrated by having resources taken from them in budget cuts. This means the areas in which the majority of black people live still struggle with polluted water, dirty air and sewage flowing down streets.
The Mail & Guardian has repeatedly reported on the comprehensive failure of the state to stop this from happening. This failure is why shopping malls in Gauteng are built on endangered grassland and new coal mines in Mpumalanga continue to pollute rivers.
But in the past five years there has been significant progress in private and nongovernmental legal groups stepping into the vacuum left by the state. Their impetus is the preamble of the National Environmental Management Act. This cornerstone of South Africa’s environmental law notes that “the law should facilitate the enforcement of environmental laws by civil society”.
As a result, the state has been defeated in several key cases. Last week, the high court in Cape Town stopped Rhino Oil and Gas from prospecting for oil on about 800 000 hectares of farmland and forest in KwaZulu-Natal. The case had been brought by a private forestry company and it won on a technicality; the state had not posted notices outside magistrates’ courts in the province, notifying affected parties about Rhino’s desire to prospect on their land.
The forestry company’s victory has also in effect stopped attempts to frack for gas in South Africa for the foreseeable future.
A week earlier, two civil society groups brought the nuclear build to a startling stop after winning their court case. Although the groups are fundamentally opposed to nuclear, their case was also built on procedural grounds; the state had not properly consulted Parliament when signing nuclear agreements with other countries. The court agreed.
A month before that, in Pretoria, the high court forced the environment department to consider climate change when granting environmental permits. Here, a new coal-fired power station in Limpopo had been given the go-ahead despite only talking about its effect on warming the world for one paragraph in its voluminous application for a permit.
A community meeting at Xolobeni. Villagers are against the mining project. (Paul Botes, M&G)
Although this case also relied on procedural grounds, the court exercised greater leeway in deciding what constitutes the environment. In the past, new building projects only had to demonstrate their effect on their immediate surroundings. But Judge John Murphy said South Africa’s policy framework “overwhelmingly” supports the conclusion that granting a permit requires “assessment of climate change impacts”.
The judgment has dramatically widened the scope for environmental litigation. Thanks to this, other would-be coal-fired power stations have started doing climate change impact assessments before being ordered to do so.
Melissa Fourie, a party in the Pretoria court case regarding the new coal-fired power station and a founder of the nongovernmental Centre for Environmental Rights, said the case was part of a concerted and ongoing effort by civil society to uphold and advance environmental law. “There are enormous amounts of potential litigation because there are generally low levels of compliance. There are just so many violations and criminal offences, each at the scale that should shut down a facility.”
A case in 2014 has increased the risks for companies that do break the law. This involved Limpopo-based sand mining company Blue Platinum Ventures. The Batlhabine community laid criminal charges against its director after the company dug up sacred ground to get more sand. In its judgment, the court gave the director of Ventures a five-year suspended sentence. If the company did R38-million worth of rehabilitation, the director need not go to jail. No option was given for a fine to be paid instead of jail time.
Holding directors personally criminally liable is the holy grail of environmental law, with cases ongoing around the world to get this sort of judgment. The argument is, if a director faces the possibility of going to jail for his or her company polluting the environment, he or she will make sure the pollution does not happen.
As a result of this precedent and the judgments in other major environmental cases, lawyers from Makhado in Limpopo to Emalahleni in Mpumalanga are going after what they call the “low-hanging fruit” —challenging companies that are polluting rivers and people’s air.
The head of one firm in Tzaneen, talking before they take a new coal mine to court, said the objective is to win enough cases so that companies start to think seriously about complying with the law. “When it comes to the environment, we’re all basically on the same page here. This is phase one.”
Phase one will last for the foreseeable future. With so much pollution and noncompliance, and ever-weakening oversight from the state, it is a task that threatens to overwhelm the civil society organisations and law firms fighting for the environment. But each case sets a precedent, and makes the next one easier.
Lawyers such as Fourie at the Centre for Environmental Rights said phase two will be on bigger-picture issues. At its core will be the state’s overriding focus on extractive and polluting industries, at the expense of the environment and people. The recent Pretoria judgment, stopping construction of a coal-fired power plant, has opened the door.
Fourie said if a power plant does a climate change impact assessment and still gets a permit, the way is open for a case to look at how the state can authorise any development that seriously contributes to global warming.
But until then, phase one is effective. Companies have historically weakened environmental law enforcement behind closed doors. Lobbyists and lawyers have done the dirty work. Now, with the state and companies losing cases, the pushback is more public. Letters and columns in newspapers and threats of taking people to court for defamation are becoming more common.
The latter approach has seen Mineral Sands Resources suing private environmental lawyer Cormac Cullinan. This is after his work on the company’s attempts to mine in the sand dunes of the Wild Coast. It is also suing the Centre for Environmental Rights, and community members, to the tune of R1.25-million for what it calls defamatory comments about its mine north of Cape Town.
This approach is so common overseas that it has become known as a “strategic lawsuit against public participation” (Slapp). The fact that it is beginning to be used in South Africa shows that the growing momentum behind environmental litigation is having its desired effect beyond the courts.