Willemien du Plessis

1. Obligations placed on local government by environmental law and the consequences of failing to comply Willemien du Plessis Conference on Local Government Law Port Elizabeth 5-6 November 2014

2. Based on chapter 3 in • Du Plessis A (ed) Environmental Law and Local Government in South Africa • (2014 Juta) to be published • Chapter 3: • Nel J, Du Plessis W and Du Plessis A "Instrumentation for local environmental governance" 1

3. Local government acts as • Regulator • Regulated 2

4. Section 24 Constitution Regulated • 24. Everyone has the right to • (a) an environment that is not harmful to theirhealth 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 use of natural • resources while promoting justifiable economic and social development. Regulator 3

5. What is the environment? Whose reponsibility? National? Provincial? Local? • “environment.’ means the surroundings within which humans exist and that • are made up of— • (i) the land, water and atmosphere of the earth: • (ii) micro-organisms, plant and animal life: • (iii) any part or combination of (i) and (ii) and the interrelationships among and between them: and • (iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing • that influence human health and well-being • S 1 National Environmental Management Act 107 of 1998 4

6. Regulator 5

7. Le Sueurv Ethekwini Municipality (9714/11) [2013] ZAKZPHC 6 (30 January 2013) • "there is nothing in the Bill of Rights itself to suggest that the protections offered by Section 24 of the Constitution are only binding on National and Provincial spheres of Government. • Quite evidently these obligations apply to all three spheres of Government. • Municipalities may not legislate in conflict with Section 24 of the Constitution. • It is evident that Section 152(1)(d) of the Constitution requires that Local Government “promote a safe and healthy environment”. • Together with the reference in Section 24 of the Constitution to reasonable legislative and other measures to promote ecologically sustainable development, justifiable economic and social development as well as the promotion of conservation is also binding on a Municipality when it exercises its powers and performs its functions as set out in Parts B of Schedules 4 and 5 of the Constitution and • those allocated to it in terms of Section 156(1)(b) of the Constitution and Section 156(4). " 6

8. Le Sueur v Ethekwini Municipality • "Section 156(1)(b) provides that a Municipality has the executive authority and the right to administer not just matters listed in Parts B of Schedule 4 and 5 but also:- • “Any other matter assignedto it by National or Provincial legislation”. • Accordingly, Section 156(4) of the Constitution provides indications that even matters reserved for National and Provincial legislative authority in Parts A of Schedules 4 and 5 may be dealt with at Municipal level. It provides:- • “The National Government and Provincial Governments must assign to a Municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4, or Part A of Schedule 5 which necessarily relates to Local Government, if:- • The matter would most effectively be administered locally; and • The Municipality has the capacity to administer it” • Section 156(5) provides that “a Municipality has the right to exercise any power concerning a matter reasonably necessary for or incidental to, the effective performance of its functions.” 7

9. Le Sueur v Ethekwini Municipality • "It is apparent that although matters relating to the environment may be said, in terms of the Constitution, to be the primary concern or sphere of National and Provincial responsibility that Local Governments in the form of Municipalities are in the best position to know, understand, and deal with issues involving the environment at the local level. • The first respondent correctly submits, in my view, that the framers of the Constitution did not intend thereby to allocate legislative powers amongst the three spheres of Government in hermetically sealed, distinct and water tight compartments." • EVEN • "[26] In addition, Section 2(4)(f) of the Local Government; Municipal planning and Performance Management Regulations published on 24 August 2001 requires spatial development frameworks reflected in an integrated development plan to:- • “contain a strategic assessment of the environmental impact of the spatial development framework”. 8

10. Local Government various instruments 9

11. AS REGULATED 10

12. As regulated: Local governments • need to know the applicable law; • need to manage own environmental authorisations, permits and licences; • need to ensure and assure compliance to all applicable environmental law; and • avoid prosecutionand litigation 11

13. 1. Know the law • Important to know which laws apply to • Activities • Products • Services • Who the regulatory agencies are • How the laws apply to the municipality • Possible instrument: Legal register 12

14. Complexity of SA Environmental Law 13

15. Know the law 14

16. 15

17. Polluter pays principle • S 19 National Water Act and s 28 of National Environmental Management Act • Even if the Municipality is not the polluter it may still be held liable! In June 2014, three babies died in Bloemhof from drinking contaminated water. It was a national tragedy. The municipal manager resigned ahead of two criminal lawsuits, the mayor was fired. The Minister of Water Affairs Edna Molewa promised swift intervention and R20 million to fix the problem. But during the same time – in fact, up until last week - more than eleven infants have died in a tiny spot on the map called Biesiesvlei, close to a slightly larger spot on the map called Sannieshof. But there is no national intervention – yet. Daily Maverick 9 July 2014 16

18. Example: s 28 NEMA • S 28 – Duty of care & Polluter pays principle • (1) Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment. •     (1A) Subsection (1) also applies to a significant pollution or degradation that- • (a) occurred before the commencement of this Act; • (b) arises or is likely to arise at a different time from the actual activity that caused the contamination; or • (c)     arises through an act or activity of a person that results in a change to pre-existing contamination. • [Sub-s. (1A) inserted by s. 12 (a) of Act 14 of 2009.] 17

19. S 29 NEMA (cont) • (2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, include an owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which- • (a)     any activity or process is or was performed or undertaken; or • (b)     any other situation exists, • which causes, has caused or is likely to cause significant pollution or degradation of the environment. Strict liability!!!! Similar measures in terms of National Water Act 18

20. 2. Specific environmental duties, e.g. • to appoint suitably qualified staff • E.g. a pest control operator who applies herbicides and pesticides must be registered in terms of ss 3 and 7bis of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947; air quality officer - NEMAQA • to register such staff with environmental authorities of the provincial and national spheres(e.g. s 62(2)(b) of the Water Services Act) • Municipalities may also be required to keep environmental records • and to perform in terms of specific norms and standards such as: • air quality standards issued in terms of the National Environmental Management Air Quality Act 39 of 2004 (NEM:AQA); • water quality standards set by the Minister in terms of the Water Services Act 108 of 1997; • national standards to control noise • May also be required to conduct prescribed monitoring(s 9 Water Services Act) • submit regular performance reports (s 34(2) NEMAQA; s 7 & 9 NEMWA) • and establish and maintain public communication • NEMA empowers the competent authority to request a defaulting municipality to submit an environmental audit report on the actual or potential harm to the environment. 19

21. 3. Manage environmental authorisations, permits and licences • Detailed and specific conditions • The validity of the authorisation needs to be managed and maintained in terms of: • permit validity and environmental performance time frames; • changes to the name of the legal person who is the licence holder; • changes to the nature of the authorised activity, process or facility; and • the ability of the licensee to sustain compliance to the conditions of the authorisation. • Instrument: e.g. dedicated environmental authorisation register together with authorisation management plans. • The persons in charge of the regulated activity should also adopt and use a management of change (MOC) control procedure to ensure that incremental changes do not over time cause any breaches of the conditions of authorisations. 20

22. 4. Compliance management • It is similarly important for municipalities to know whether they are indeed compliant with the applicable environmental law and what needs to be done to objectively demonstrate sustained compliance. • Instruments to achieve, maintain and demonstrate compliance with the requirements of applicable South African environmental law are • environmental management or compliance plans, • legal compliance audits and inspections, as well as • performance monitoring. • The integrity of both internal legal compliance audits and auditor competence can be quality assured in terms of the ISO 19011: 2011 Guidelines for Auditing Management Systems. • The outcomes of a legal base-line audit are normally reported in a formal audit report. 21

23. Non-compliance • Directive – in terms of legislation e.g. • S 19 National Water Act ; S 28 of NEMA • Non-compliance – fine or imprisonment or both • If did not comply with environmental impact assessment requirements • Administrative fine • S 24G rectification application • Possible prosecution • Personal criminal liability & Corporate liability (e.g. as municipal manager) • Again – fine and imprisonment / both • S 48 of NEMA that protected municipalities against criminal prosecution has been repealed. • Although ch 3 of Constitution states – avoid litigation – see more and more cases where municipal managers (and corporate directors) are brought to trial • If fine – tax payer that bears the brunt of the fine and the possible "pollution" – therefore necessary to rather try to remedy or use instrumentation to prevent pollution or degradation to environment 22

24. How to avoid prosecution? • First remember: • In terms of NEMA – trustee of the environment – s 2 • In terms of s 28 of NEMA – duty of care • To prevent pollution and environmental degradation • And to take reasonable measures 23

25. Integration of decision-making & need for cooperative governance 24

26. Other reasonable measures • a) municipal integrated development planning (IDP); • b) performance management; • c) budgeting and funding; • d) supply chain management; • e) human resource management; and • f) internal auditing 25

27. E.g. IDP

28. In conclusion • As Regulator – local government may ensure that there is an environment that is not detrimental to health and well-being • As Regulated – ensure that does not create an environment that is detrimental to health and well-being • How? • Use instruments available to local government – adapt existing instruments to also ensure that decision-making takes the environment into account • Appoint competent staff / train staff in environmental legal compliance • Make use of auditing – King III reporting expects triple bottom line reporting – Auditor-General already audits compliance to environmental law • Ensure that contractors are also aware of environmental laws and need for compliance (e.g. illegal dumping, medical waste, hazardous waste etc) • Make use of incentives to staff, marketing etc (Green Drop, Blue Drop etc) • ENSURE COMPLIANCE TO THE LAW • Avoid criminal and civil litigation …… 26

29. Thank You!