posted 13 Nov 2007 in Volume 10 Issue 6

Tread lightly: South Africa's robust environmental regulatory environment

by Neil Kirby, director, Werksmans Attorneys

IN JUST over a decade, South Africa’s environmental law framework has gone from being a peripheral factor in corporate decision-making to a burning issue that companies cannot afford to overlook.
Traditionally, the two topics that have most preoccupied international investors in South Africa from a legal point of view are tax and human resources. Although these continue to enjoy priority, a third factor has entered the scenario: the importance of a healthy respect for the environment. South Africa’s current environmental regulatory regime is rigorous, ubiquitous and robustly enforced.
Prior to 1994, environmental regulation was limited in scope and applicable mainly to players in high-impact industries such as mining and energy. The environmental net that has since been cast under the flagship Environmental Management Act is far deeper and wider. Today, virtually every development activity under the sun and every element of the environment – marine, coastal, terrestrial and air – is subject to environmental impact assessment and related regulation. Where the law once clearly favoured industrial development, the focus is now firmly on sustainable development.
Even more significant is that the country’s environmental law framework is backed by the highest law of the land, the South African Constitution. Section 24 of the Constitution specifically states that every citizen is entitled to live in an environment that is not detrimental to their health and well-being.
This Constitutional protection has contributed to growing awareness among South Africans on environmental matters and the strengthening trend towards environmental activism. Indeed, environmental action groups, collaborating with communities, are typically the first to blow the whistle on development projects perceived as infringing citizens’ constitutional rights.
Fuelling the already high level of public awareness of the environment is the growing overlap between public health and environmental issues, particularly the link between pollution and health. South Africans in general are also keenly aware of the international environmental agenda, including climate change and global warming, and of the triple bottom-line obligations of the corporate sector.
All of these factors – the Constitution, regulation, public vigilance and corporate governance requirements – together create a complex legal framework that highlights the need for businesses to tread lightly when it comes to environmental issues.
Companies that gloss over environmental considerations, inadvertently or otherwise, stand to pay a heavy price. Infringements of environmental law and regulation carry massive financial penalties and the potential for imprisonment. Significantly, liability is not limited to erring companies but also to their directors, highlighting the seriousness with which breaches are viewed.
Furthermore, companies confronted with a legal challenge are often caught by surprise. Plaintiffs tend to take action swiftly, typically in the form of urgent interdicts or applications in the High Courts.
The papers are voluminous, the plaintiff usually well-informed and the defendant compelled to respond rapidly.
On my desk currently are a number of such matters, all of them large, complex and contentious. Among them are an industrial development in the province of Mpumalanga, a residential development in the Eastern Cape and hotel construction on the north coast of KwaZulu-Natal. In most of the cases appearing, at Werksmans and elsewhere, action against the client is based on allegations that some element of administrative or regulatory process was not properly followed.
Of course, it is far better for business to cross their Ts and dot their Is early on in their development activities before they find themselves facing a legal challenge or actual litigation. This would usually begin with an analysis of all possible environmental and administrative regulations with which companies would have to comply, followed by advice on how they can achieve compliance and then assistance in doing so. The latter may include obtaining the necessary permits and applications from a host of environmental authorities, some of them national, some provincial and some local, and of course ensuring that environmental impact assessments are rigorously and thoroughly conducted.
Being forewarned and forearmed may be cumbersome and time-consuming but is far preferable to the alternative. South Africa’s environmental law framework is a serious matter that demands healthy respect.

Neil Kirby is an environmental law specialist and has headed Werksmans’ Healthcare and Life Sciences practice since 2000. He can be contacted at nkirby@werksmans.com