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In its eleventh year of existence NEMA, the National Environmental Management Act, became one of several statutes to be amended by the National Environmental Law Amendment Act of 2009, which has been in effect since September.
At its inception, NEMA established a duty of care and remediation toward the environment. It required a person who causes or may cause significant pollution or degradation to take reasonable measures to prevent those effects from occurring, continuing or recurring. That duty is now broader and deeper, in several ways:
First, it becomes retroactive, applying to damage that occurred before NEMA’s birth in 1998.
Second, the Department’s power to intervene is strengthened. As before, the Department may issue a directive to a landowner -- or a person in control of, or using, land or premises -- to take those “reasonable measures”. As before, in the event of non-compliance the Department may take its own “reasonable measures”. But previously the Department had to first take the reasonable measures and then claim the costs of taking them. Now it may recover costs first and take the measures later.
Third, a new subsection [28 (14)] brings in a new principle: omission. An unlawful omission, whether intentional or negligent, is now an offence if it “causes or is likely to cause” significant pollution, degradation, or detrimental effect.
Fourth, penalties are defined. Whether intentional or negligent, that omission may now meet a fine of up to R1 million or imprisonment of up to 1 year, or both. Failure to comply with a “reasonable measures” directive is now also punishable to the same extent.
Fifth, the gaining of advantage from the offence becomes itself penalty-bearing. Previously a court that ruled an accused person guilty could in the same proceedings acquire into the value of the damage done and give a damages award as if this were a civil action. Now the court may also summarily enquire into the monetary value of advantage gained or likely to be gained by the convicted person, and in addition to any other punishment it imposes, it may impose compensation of that value, or order remedial measures to be taken by the convicted person.
The Amendment permits a magistrate's court to impose any penalty prescribed by the Act. Add this widened jurisdiction to the increased criminal proceedings and the extended right to rectify harm done to our land, air or water, and South Africans may be taken aback to know what our law has been for the last six months. It is hard to recall that barely more than a decade ago, for the law to get involved in this terrain at all was widely perceived as unthinkable.
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