Environmental Law

• Citation: 2021/2022 YSAL 529
• Published date: 14 April 2023
• Pages: 529-564
• Author: Kidd, M.
• Date: 14 April 2023

529

1. INTRODUCTION

While the legislative front in environmental law has been quiet during the

period under review, several significant judgments have been delivered,

dealing with issues suc h as waste management, water use rights, municipal

planning and a ir pollution. The requirement of adequate public participation

has been highlighted by the courts in several cases involving approval of

extractive activities (both offshore and terrestrial) as well as in relation to

the declaration of alien and i nvasive species.

2. LEGISLATION

No new original legislation was passed during the period 1 July 2021 to

30 June 2022.

3. CASES

3.1 WASTE MANAGEMENT

The Msunduzi Local Mun icipality is responsible for running t he municipal

landfill site in Pietermaritzburg, which has at times been a source of

severe annoyance to most citizens of that city for some years. In South

African Human Rights Commission v Msunduzi Local Municipality,1 the court

observed that mismanagement of the site by the respondent municipality

(the municipality) has ‘persisted and continues unabated for more than

15 yea rs’.2 In recent years, several large fires on the site have caused severe

disruption to schools and ot her activities over a wide area.

* BCom LLB LLM PhD (Natal); Professor of Law, University of KwaZulu-Natal,

Pietermaritzburg. ORCID: https://orcid.org/0000-0001-7800-1810.

1[2021] 3 All SA 939 (KZP).

2Para 93.

Environmental LawEnvironmental Law

Michael Kidd*

2021/2022 YSAL 529

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The case involved an application by the South African Human Rights

Commission (SAHRC) for, first, a declaratory order to the effect that the

municipality was in breach of various legislative provisions, including

s 24 of the Constitution of the Republic of South Africa, 1996 (more

details below), and certain international law obligations. The SAHRC also

sought a structural interdict allowing the court to ‘exercise some form of

supervisory jurisdiction over the municipality to ensure that the order is

implemented’.3 The legislative provisions imposing responsibilities on the

municipality which were allegedly contravened included requirements of

the waste management licence for the la ndfill site, more recently in terms of

the National Environmental Management: Waste Act4 (Waste Act), various

compliance notices issued in terms of s 31L of the National Environmental

Manage ment Act5 (NEMA), and provisions in NEMA, the Waste Act and the

Nationa l Water Act.6

The court carefully considered the evidence, which demonstrated a

pervasive failure to manage the landfill site properly over a considerable

period of time. According to the cour t, this evidence persuaded it of the ‘abject

failure’ by the municipality to comply with the waste management licence

and to ‘fulfil its constitutional duties to the citizens of Pietermaritzburg

and surrounding areas’.7 There was no serious attempt by the municipality

to rebut the evidence, but it did argue that the declaratory order served

no lawful purpose as it merely reinforced duties found in the relevant

legislation.8

The sheer weight of the evidence persuaded the court otherwise,

however, and it declared the municipality in breach of the applicable waste

management licence (issued on 3 July 2017), in respect of the operation of the

New England Road Landfill Site in Pietermaritzburg; and also in breach of

s 24 of the Constitution; s 20(b) of t he Waste Act;9 s 31L(4) of NEMA;10 s 2 8(1)

3Para 10.

459 of 2008.

5107 of 1998.

636 of 1998.

7South African Human Rights Commission v Msunduzi Local Municipality (note 1) para 88.

8Para 59.

9 The subsection reads: ‘No person may commence, undertake or conduct a waste

management activity, except in accordance witha waste management licence issued in respect

of that activity, if a licence is required.’

10 The subsection reads: ‘A person who receives a compliance notice must comply with

that notice within the time period stated in the notice unless the Minister or MEC has agreed to

suspend the operation of the compliance notice …’.

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and (3) of NEMA;11 s 19(1) of the National Water Act;12 and its obligations

in terms of international law.13 The court also decided upon a structural

interdict, ordering the municipality to file an action plan within one

month detailing how it aimed to comply with the compliance notices and

the requirements of the waste management licence, following which the

municipality had to make monthly progress reports on its implementation

of the action plan. The court also ordered remediation in terms of s 28 of

NEMA, and a report within six months of the court order on progress in

regard to the s 28 obligation.

On the facts and in relation to the application of the relevant law, there

is nothing particularly remarkable about the judgment – non-compliance

by the municipality was crystal clear. The facts do serve to emphasise the

difficulties faced by state ent ities (in this case, the provincial environ mental

authorities) that are attempting to ensure legal compliance by other state

entities, as is also evident in the case of the pervasive failure of municipal

water treatment works throughout the country. One might be tempted to

ask why this court order would be expected to lead to d ifferent results from

the previous attempts at securing compliance (compliance notices), but the

consequences of failure to comply with a court order are potentially more

serious. Another observation is that, even though it may seem obvious, a

breach of the s 24 ‘environmental right’ in the Constitution may attract the

attention of the SAHRC, which, as in this case, is empowered to litigate

to secure compliance therewith. As of August 2022, it was reported in the

media that the municipality was still working towards the goal of ‘making

the site compliant’.14

11Section 28(1) provides that 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, while s 28(3) specifies what these

measures may include.

12 This section reads: ‘An owner of land, a person in control of land or a person who

occupies or uses the land on 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 pollution of a water resource, must take all

reasonable measures to prevent any such pollution from occurring, continuing or recurring.’

13South African Human Rights Commission v Msunduzi Local Municipality (note 1) para 109.

See paras 82–84 of the judgment for details of the relevant international provisions.

14 Sakhiseni Nxumalo ‘Anarchy at Msunduzi landfill site’ The Witness (4 August 2022),

available online at https://www.citizen.co.za/witness/news/anarchy-at-msunduzi-landfill-

site/.

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