South Africa

CRIN would like to express our profound gratitude to Karabo Ozah and Lebohang Dube from the Centre for Child Law at the University of Pretoria for their insightful comments on a draft of this report. CRIN also sent a draft version to the State for feedback and any comments received were taken into account in finalising the report. Any errors or inaccuracies remaining in the report are CRIN’s.

This report is provided for educational and informational purposes only and should not be construed as legal advice. CRIN does not accept liability for any loss, damage, cost or expense incurred or arising by reason of any person using or relying on information in this report. CRIN encourages personal and educational use of this publication and grants permission for its reproduction in this capacity where proper credit is given in good faith.

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I. National legal protections

A. Are environmental rights protected within the national constitution?

Section 24 of the Constitution of the Republic of South Africa Act 108 of 1996 (the “Constitution”), affords every person a right to an environment that promotes their health and well-being. It places an obligation on the State of South Africa (the “State”) to: i) take reasonable legislative and other measures aimed at preventing pollution and ecological degradation; ii) promote conservation; and iii) secure ecological sustainable development and the use of natural resources while promoting justifiable economic and social development.

Section 24 forms part of the Bill of Rights in the Constitution. According to section 39(2) of the Constitution, courts must “promote the purport, spirit and objects of the Bill of Rights” when interpreting any of its provisions.1

The environmental right does not protect a pristine environment but rather focuses on the manner in which the state of the environment impacts human health and well-being. In considering matters affecting the environment, administrators and courts must consider the environmental, social and economic impacts arising from any proposed development activity.

Section 28 of the Constitution guarantees the basic rights of children to nationality, protection from exploitation and maltreatment, and access to social services and nutrition. Section 28(2) specifies that the best interests of the child “are of paramount importance in every matter considering the child.” This means that the child’s best interests should guide interpretation and implementation of every other right, including the environmental right. “In other words, sections 28(2) and 24 of the Constitution are interdependent.”2

B. Have constitutional rights protections been applied by national courts with regards to environmental issues?

The environmental right is seldom directly enforced by the South African courts, but is instead enforced through various statutes, which the courts interpret.3 In interpreting those statutes, the courts often reference and rely on the constitutional environmental right contained in Section 24.

The most authoritative, foundational case in this regard is Fuel Retailers Association of SA (Pty) Ltd v Director-General, Environmental Management, Mpumalanga, and Others.4 Fuel Retailers concerned the nature and scope of the environmental authorities’ obligation to balance sustainable development and environmental protection in their decision-making.

Overturning the environmental authorities’ decision to grant the Inama Family Trust environmental authorisation to construct a filling station, the Constitutional Court held that “the Constitution recognises the interrelationship between the protection of the environment and socio-economic development. It contemplates the integration of environmental protection and socio-economic development and envisages that the two will be balanced through the ideal of sustainable development.”5

The court relied on both section 24 and the National Environmental Management Act, holding that “a concern for social and developmental equity between generations...is reflected in the principles of intergenerational and intragenerational equity which are embodied in both section 24 of the Constitution and the principles of environmental management contained in NEMA.”6

The most recent relevant case is The Trustees for the Time Being of GroundWork Trust and Others v Minister of Environmental Affairs and Others (“Deadly Air case”).7 The case concerns the dangerous levels of air pollution in the Highveld Priority Area (“HPA”), which spans parts of Gauteng and Mpumalanga Province and had been declared a priority area by the Minister of Environmental Affairs under the National Environmental Management-Air Quality Act (“NEMAQA”) in 2007. The area covers some of the most polluted towns in South Africa and is home to 12 coal-fired power stations, numerous coal mining operations, and a coal refinery.

The applicants, groundWork and Vukani Environmental Justice Alliance Movement in Action, sought declaratory and mandatory relief concerning the extent of government’s obligations regarding air pollution in the HPA. They argued that the levels of ambient air pollution in the area breached the residents’ right to a healthy environment in terms of section 24(a) and other constitutional rights, and that, although the Minister of Environmental Affairs had published the HPA Air Quality Management Plan (Highveld Plan) in 2012 to reduce ambient air pollution by 2020, there was a concerning lack of progress and an absence of implementation on the part of the Minister given that nine years had passed and this deadline had expired.

The Minister contested the applicants’ arguments and inter alia contended that they could not rely directly on section 24(a) as a course of action, and that the right contained therein was not immediately realisable.

The court concluded that the poor air quality in the HPA was in breach of the residents’ section 24(a) constitutional rights and that the Minister’s conduct was inconsistent with the Constitution. It emphasised that section 24(a) is an unqualified, immediately realisable right, similar to section 29 right to basic education, which both differ from section 24(b) and other social economic rights that may be progressively realisable and, therefore, are qualified. This means that the residents have a right to a safe and healthy environment.

Additionally, courts have held that “in line with international law, the environment is a composite right, which includes social, economic and cultural considerations in order to ultimately result in a balanced environment.”8 This broad definition “incorporates all the specialist and older categories of “pollution”, “conservation”, “health” and similar concepts,”9 a crucial recognition in strengthening environmental protections.

C. Has the concept of intergenerational equity been applied within national courts? If yes, in what circumstances?

In Fuel Retailers, the Constitutional Court recognised a “broad definition of sustainable development” which explicitly “incorporates two of the internationally recognised elements of the concept of sustainable development, namely, the principle of integration of environmental protection and socio-economic development, and the principle of intergenerational and intragenerational equity.”10

In the 2004 case of BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment & Land Affairs, the court gave a historical assessment of the principle of intergenerational equity in South Africa. BP Southern Africa challenged the MEC’s decision refusing authorisation for a filling station based on guidance that stations within 3 km of each other would be rejected. BP argued that: (i) such guidelines should not be applied strictly and each case should be decided based on whether the proposed filling station had an actual or potential detrimental impact on the environment; and (ii) the MEC had applied the 3 kilometre rule in this instance to regulate the economy and to protect the commercial interests of the existing filling stations in the area. These commercial interests, BP argued, are not part of the socio-economic considerations that should be taken into account by the MEC in deciding whether to grant environmental authorisation.11

In reaching its decision, the court held that “the balancing of environmental interests with justifiable economic and social development is to be conceptualised well beyond the interests of the present living generation”.12 It further clarified that:

The above principles of “intergenerational equity” which qualifies the rights to ownership of land, have been recognised as far back as 1971 when, in King v Dykes 1971 (3) SA 540 (RA), MacDonald ACJ said… “The idea which prevailed in the past that ownership of land conferred the right on the owner to use his land as he pleased is rapidly giving way in the modern world to the more responsible conception that an owner must not use his land in a way which may prejudice his neighbours or the community in which he lives, and that he holds his land in trust for future generations.”13

The court forcefully supported the principle of intergenerational equity, stating that “by elevating the environment to a fundamental justiciable human right, South Africa has irreversibly embarked on a road, which will lead to the goal of attaining a protected environment by an integrated approach.14

In 2014, the Supreme Court of Appeals in Vaal Environmental Alliance confirmed that air pollution raises particularly urgent questions of intergenerational justice, requiring steps to be taken to protect both the current and future generations.15 This case involved an environmental community organisation’s right to access environmental information regarding the respondent’s industrial activities. In finding that companies were obliged to share such information, the Supreme Court of Appeals ordered the company to disclose this information, as it had real impacts on the communities and the applicants.

In 2018, the Western Cape High Court reaffirmed this principle in WWF South Africa v Minister of Agriculture, Forestry and Fisheries and others. WWF challenged the total allowable catch for West Coast Rock Lobster declared by the Minister of Agriculture, Forestry and Fisheries under the Marine Living Resources Act on the basis that the Minister permitted a catch that was greater than the sustainable level recommended by experts.16

In supporting the WWF’s application, the court held that the “need to preserve environmental resources is for the benefit of future generations...is an important element of sustainable development,” codified also in Principle 3 of the Rio Declaration. Importantly, the court held that “this principle should not be viewed as a ‘luxury’ applicable only to first world countries.”17 This crucial qualification further supports promotion of intergenerational equity even for countries focused on economic development.

More recently, in March 2022 the North Gauteng High Court in the ‘Deadly Air case’ discussed the intergenerational environmental right contained in section 24(b) of the Constitution and its link to the right to an environment that is not harmful in section 24(a). It found that intergenerational equity is a necessary and practical extension of the right to an environment that is not harmful, and that “[s]ustainable development is integrally linked with the principle of “intergenerational justice””.18

D. What legislation is in place to regulate environmental protection? Are there any proposals for legal reforms currently under review in the national legislature?

Numerous environmental statutes have been promulgated. The National Environmental Management Act 107 of 1998 (“NEMA”) is a framework statute which was created to give effect to environmental rights in the Constitution. NEMA is premised on various environmental law principles drawn from international conventions and international customary law such as the “polluter pays” principle, the principle of intergenerational equity and the “cradle to grave” principle. All environmental laws must be interpreted and applied in accordance with NEMA and the principles contained therein.

Environmental legislation in South Africa can be divided into three basic categories of thematic areas:

1. Planning

  • The Environmental Impact Assessment Regulations and the associated listed activities published in terms of the NEMA.19
  • Spatial Planning and Land Use Management Act No 16 of 2013.20
  • National Environmental Management: Protected Areas Act No 57 of 2003.21

2. Resources

  • National Water Act 36 of 1998.22
  • National Environmental Management: Biodiversity Act No 10 of 2004.23
  • National Heritage Resources Act 25 of 1999.24
  • Minerals and Petroleum Resources Development Act 28 of 2002.25

3. Waste and Pollution

  • National Environmental Management: Air Quality Act No 39 of 2004.26
  • National Environmental Management: Waste Act No 59 of 2008.27
  • Carbon Tax Act No 15 of 2019.28
  • Hazardous Substances Act No 15 of 1973.29

The Water Act in particular is a progressive piece of legislation based on the principle that “water is a scarce natural resource that belongs to all of the people of South Africa and that it must be used beneficially and in the public interest.” Notably, it establishes a Water Tribunal - an independent body where anyone may challenge administrative decisions made under the NWA.30 However, scholars have criticised the implementation of the NWA as ineffective and flawed.31

This list is not exhaustive as there are various other Acts which directly and indirectly regulate the environment at a national, provincial, and municipal level.

Further, new laws regulating climate change and chemicals are expected to be promulgated following the 2019 Carbon Tax Act, an ambitious piece of legislation that is predicted to cut South Africa’s emissions by 33% from the baseline by 2035.32

In February 2022, the Department of Forestry, Fisheries and the Environment introduced the Climate Change Bill to Parliament.33 The Bill seeks to develop an effective climate change response and a long-term, just transition to a low-carbon and climate resilient economy and society for South Africa in the context of sustainable development, and to provide matters connected therewith. The Bill is currently under consideration by the National Assembly and was open for public comment at the Portfolio Committee on the Environment, Forestry and Fisheries until 27 May 2022.

A number of environmental and human rights organisations have put forward concerns about the Bill’s current form. With regards to children’s environmental rights, the Centre for Child Law at University of Pretoria submitted inter alia that the Bill should be clearer about: the protection of children’s rights, child participation in decision-making processes, establish Paris Agreement commitments as legally binding, giving effect to the principle of intergenerational equity, and allowing access to information for children.34

E. Is there any specific national policy addressing childhood exposure to toxic substances? If so, what is considered a safe level of exposure and what is the process for determining safe levels of exposure?

The Department of Health has gazetted a national policy titled the National Environmental Health Policy35 (the “policy”) which provides broad guidelines and a framework for the effective implementation of environmental health services in South Africa. The policy specifically recognises the susceptibility of children to environmental risks. Considering the high child mortality rates in South Africa due to respiratory and water-borne diseases, the policy reiterates that promoting healthy environments for children is a cross-cutting issue that is to be highly prioritised by the State.36

The policy further refers to certain legislation and regulations that have been enacted so as to ensure that the public are not exposed to substances which may be harmful to their health and well-being, specifically the health and well-being of children. The policy highlights the fact that The World Health Organization estimates that up to 70% of childhood deaths in Africa are attributed to environmental risk factors.37

Notably, while the policy provides guidance and a framework for governmental departments, environmental legislation and its regulations provide further protections to ensure a safe environment for the public. For example, regulations under NEMA prohibit, inter alia, the use, sale and import of asbestos and Polychlorinated Biphenyls.38

More specifically, in the context of children, regulations on hazardous work by children39 have been gazetted under both the Basic Conditions of Employment Act40 (“BCEA”) and the Occupational Health and Safety Act,41 (“OHSA”) in terms of GN R7 GG32862/15-1-2010 (“Regulations”),42 which apply to the employment of children between the ages of 15 and 18 and who are no longer subject to compulsory schooling in terms of any law.43 Under these Regulations, the employer is required to, inter alia, undertake a number of risk assessment measures and provide plans of safe work procedures regarding permitted work by child workers.44

While the regulations promulgated under the BCEA and OHSA do not provide guidance on any thresholds or benchmarks with regards to levels of exposure to toxic substances in respect of children, the BCEA regulations on hazardous work by children in South Africa45 (“BCEA Regulations”) outright prohibit a child to work in an environment or industry involving, inter alia, work in which there is exposure to tobacco dust, refining petroleum products and filling cars with petroleum, exposure to lead, asbestos, silica, coal or other hazardous dusts or to pressurised gases, and exposure or potential exposure to blood-borne or air-borne pathogens.46 In addition, regulation 9 of the BCEA Regulations (Worst forms of child labour) states further that, it is an offence for any person to require or permit a child to work, inter alia, in underground mining, work in connection with the operation of a smelter or furnace, or rolling mills that form and cut metals, the manufacturing of auramine, isopropanol or magenta and the gasification of coal.

Additionally, the Tobacco Products Control Act47 prohibits smoking tobacco products in a motor vehicle when a child - defined in this context as under the age of 12 - is present. Specifically, section 2(2) of the Act48 further states that even though a private dwelling is not a prohibited place for the purposes of the definition of a “workplace,” no person may smoke any tobacco product in a private dwelling if that private dwelling is used for any commercial childcare activity, or for schooling or tutoring.

Finally, researchers affiliated with UNICEF South Africa and the University of Cape Town recognise that with 11 official languages in South Africa, all children do not have equal access to information about hazardous substances, including endocrine-disrupting chemicals. The researchers recommend that information about such substances be incorporated into school curricula or that labels on hazardous products be translated into different languages.49

F. Is the country equipped with pollutant release and transfer registers? If yes, do these registers take into account child specific factors regarding the substances for which data is gathered and the type of data generated?

No, not yet. Since 1998, South Africa has been investigating the possibility of setting up a PRTR, including linking it to an environmental permit system.50 The NEMA: Waste Act does require the Minister of Environment, Forestry, and Fisheries to maintain a separate register of contaminated land, but it is not tailored towards children.

G. Does the State assert extra-territorial jurisdiction for any environmental issues?

Generally, no. South African law does provide some extra-territorial jurisdiction for crimes such as terrorism, but not environmental crimes.51 Additionally, the Constitutional Court recently considered whether the Labour Relations Act could apply extraterritorially, but concluded that it could not.52 There has thus far been no similar analysis of NEMA or any other environmental legislation. NEMA itself does not contain any provisions regulating extra-territorial jurisdiction in respect of environmental matters.

The National Environmental Management: Air Quality Act addresses transboundary pollution by empowering the Minister of Environment, Forestry and Fisheries to ‘investigate any situation which creates, or may reasonably be anticipated to contribute to (a) air pollution across the Republic’s boundaries; or (b) air pollution that violates, or is likely to violate an international agreement binding on the Republic in relation to the prevention, control or correction of pollution.”53 The section also requires the Minister to consult with the relevant Cabinet member for foreign affairs before taking regulatory action in response to their investigation.

 
 

II. Accessing courts

A. How can environmental cases be brought before national courts?

Children generally have access to all courts and complaints mechanisms. This is protected by Section 34 of the Constitution, as well as the Children’s Act No. 38 of 2005 (the “Children’s Act”),54 which provides that every child has the right to bring a matter to court, provided that matter falls within the jurisdiction of that court. In particular, children and their representatives have the right to bring a case to a competent court alleging a violation of one of the constitutional Bill of Rights or the Children’s Act.55

Civil Proceedings

Children - with the assistance of their representatives - may bring cases in domestic courts to challenge violations of children’s rights. Under the Children’s Act, “every child has the right to bring, and to be assisted in bringing, a matter to court, provided that matter falls within the jurisdiction of that court”.56 This right is of general application and would apply in respect of all environmental matters under NEMA and other environmental laws.

Administrative Law

The Bill of Rights provides for the right to judicial review of any law or conduct that is alleged to be unconstitutional, as well as judicial review of administrative acts. Under section 33, everyone, including children, “has the right to administrative action that is lawful, reasonable and procedurally fair”. Under the Promotion of Administrative Justice Act 3 of 2000,57 (“PAJA”) any person may institute proceedings in a court or tribunal for judicial review of an administrative action or the failure to take a decision.

Criminal Proceedings

Section 28(14) of NEMA - added by the National Environmental Laws Amendment Act of 2014 - makes it a criminal offence to cause “significant pollution or degradation of the environment,” whether intentionally or negligently. Upon conviction, perpetrators can be sentenced to one year in prison or a fine, or both.58

In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence, any person (including a child or their representative) may bring a private prosecution in respect of that offence in any competent court.

The NEMA empowers persons acting in the public interest and/or in the interest of the protection of the environment to institute private prosecution in relation to breaches - including threatened breaches - of duties regarding environmental protection if a breach of that duty is an offence. Private prosecutions, however, may only be launched where the applicant has received approval from the Director of Public Prosecutions that he / she has declined to prosecute the offence.59 For instance, the Gauteng High Court allowed a private environmental prosecution to proceed, holding that it complied with the requirements of NEMA because testimonial evidence of environmental degradation showed that the prosecution was in the public interest of protecting the environment and that the DPP had been duly consulted.60

Constitutional Court

Under section 167(6) of the Constitution, “National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court

  • (a) to bring a matter directly to the Constitutional Court; or
  • (b) to appeal directly to the Constitutional Court from any other court”.

Section 167(7) of the Constitution defines a constitutional matter as one that involves the interpretation, protection and enforcement of the Constitution. Therefore, provided that it is in the interests of justice, and in the event that section 24 of the Constitution (i.e. the environmental right) requires interpretation, protection or enforcement, a person - including a child - is entitled to bring the matter either directly, or directly on appeal, to the Constitutional Court.

B. What rules of standing apply in environmental cases?

Constitutional Standing

Under section 38 of the Constitution, the following persons have the right to approach a competent court, “alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights”:

  • (a) anyone acting in their own interest;
  • (b) anyone acting on behalf of another person who cannot act in their own name;
  • (c) anyone acting as a member of, or in the interest of, a group or class of persons;
  • (d) anyone acting in the public interest; and
  • (e) an association acting in the interest of its members.

Standing under NEMA

Any person or group of persons may seek appropriate relief in respect of any breach or threatened breach of the NEMA or any other law concerned with the protection of the environment or the use of natural resources:

  • (a) in that person’s or group of person’s own interest;
  • (b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings;
  • (c) in the interest of or on behalf of a group or class of persons whose interests are affected;
  • (d) in the public interest; and
  • (e) in the interest of protecting the environment.

Contrary to the general rule that the costs of an application follow the winner, a court may decide not to award costs against a person or group of persons whose application is unsuccessful, “if the court is of the opinion that the person or group of persons acted reasonably out of concern for the public interest or in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought.”61

Where the applicant obtains the relief sought, the court may order the defendant to pay attorneys’ fees to attorneys who provided free legal assistance.62

Class Actions

In addition to the above, where a person acts on behalf of a group of persons, the applicant will need to comply with the rules governing class actions. In South Africa, a class action does not constitute a separate cause of action upon which a claimant can sue. As a result, some other cause of action, such as a delict (tort) or claim under legislation must be present.

Procedurally, a class action must be certified by the court, before the summons can be issued. A preliminary application must be made to court for the authority to do so.63 In the case of Trustees for the Time Being of Children’s Resources Centre and Others v Pioneer Food (Pty) Ltd and Others64 the court held that when defining a “class” it is not necessary to identify all the members of the class but “the class must be defined with sufficient precision that a particular individual’s membership can be objectively determined by examining their situation in light of the class definition.”65

In 2020, a group of 13 representative plaintiffs brought a high-profile class action against the South African subsidiary of Anglo-American for alleged extensive lead poisoning in the town of Kabwe, Zambia, raising both a class action and potential extraterritoriality question. They filed a founding affidavit - with the names of the children redacted - seeking class certification.66 In the meantime, the case has inspired strong media coverage. UN experts and NGOs have sought to become amici curiae, and another regional NGO has urged the Committee on the Rights of the Child to address the situation in Kabwe. An estimated 140,000 children and women of child-bearing age living in Kabwe are represented in the case, making it one of Africa’s largest class-action cases. The case is ongoing.67

C. Do these rules of standing differ when children are the complainants and if so in what way?

There are no specific rules governing the standing of children in environmental matters. However, section 10 of the Children’s Act provides for flexible, age-appropriate participation of children in legal proceedings, requiring that their views “be given due consideration.”

Section 17 of the Children’s Act provides that a person reaches the age of majority when they turn eighteen. Under ordinary civil principles, a person under the age of eighteen is defined as a “child” and must be “duly assisted” or “represented” by a guardian (usually a parent or guardian) in civil proceedings. A minor who is under the age of seven does not have any legal capacity and must always be represented by a parent or legal guardian. However, a minor over the age of seven may choose either to institute or defend a claim in the name of the parent or legal guardian who is acting in a representative capacity or in the name of the minor who is duly assisted. In the event that (a) the minor does not have a guardian; (b) the parent or legal guardian refuses to act for the minor; or (c) there is a conflict of interest between the minor and parent or legal guardian, a curator ad litem68 may be appointed by the court to act on the minor’s behalf.69

Section 15 of the Children’s Act has extended standing in that various people have “the right to approach a competent court, alleging that a right in the Bill of Rights or this Act has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.” Such persons include:

  • (a) a child who is affected by or involved in the matter to be adjudicated;
  • (b) anyone acting in the interest of the child or on behalf of another person who cannot act in their own name;
  • (c) anyone acting as a member of, or in the interest of, a group or class of persons; and
  • (d) anyone acting in the public interest.

D. What is the burden and standard of proof for allegations of personal injury as a result of toxic exposure?

In cases of personal injury (i.e. claims for damages in respect of harm suffered from toxic exposure), the plaintiff will need to prove the elements of a delict (tort). That is, the defendant (the wrongdoer) intentionally or negligently breached the duty of care owed to the plaintiff which results in harm to the plaintiff. The standard of proof in these cases is based on a balance of probabilities.

E. What limitation periods apply in environmental cases?

There are no specific time limitations that apply in environmental cases.

Civil matters

In respect of civil matters, the Prescription Act 68 of 1969 states that ‘a debt shall be extinguished by prescription after the period in terms of which the relevant law applies in respect of the prescription of such debt.’70 In delictual matters (e.g. claims for loss or damage as a result of environmental harm), claims must be brought within three years of the debt becoming due. That is, from the time that the injured person becomes aware or should reasonably have been aware of the existence of the debt.71 The commencement of legal proceedings suspends the running of prescription.

Criminal matters

Under the Criminal Procedure Act, the right to prosecute a person for any criminal offence lapses after 20 years unless the governing legislation states otherwise. The NEMA does not include a provision indicating that there is on-going criminal liability. There are some exceptions to the prescription of criminal prosecutions and these relate to offences such as murder, robbery, kidnapping, child-stealing and rape.

Administrative Law

Appeals against decisions made under the environmental laws are governed by the procedures contained in that legislation or associated regulations. Once all internal appeals have been exhausted, judicial review proceedings can be launched within 180 days of the appeal decision (or where no such appeal is available, the original decision).72 In circumstances where a person is unable to comply with the 180 day time period, they may apply for condonation of the late filing of the application under PAJA.73 The Court may grant condonation where the interests of justice require an extension of the period.74

F. Is legal aid available in environmental cases? If so, under what circumstances?

Legal Aid South Africa is a governmental body that provides legal assistance to those who cannot afford their own legal representation. Moreover, there are a number of non-governmental legal service institutions that may agree to assist children in environmental matters provided the proposed litigation meets their internal compliance requirements and objectives. These institutions include the Legal Resources Centre, Pro Bono.org, the Centre for Applied Legal Studies, the Centre for Environmental Rights, Earthlife Africa, Greenpeace, the Centre for Child Law, and others. Some of these NGOs, such as the Centre for Environmental Rights, have their own criteria for which cases they will undertake. These can include the novelty of the case, the vulnerability of the potential plaintiffs, and other avenues for the plaintiffs to get justice.75

 
 

III. Remedies

A. What remedies are courts empowered to impose in environmental cases?

Civil matters

Aside from declaratory relief (declaring certain law or conduct invalid), other judicial remedies for rights violations include damages, prohibitory orders (preventing any person from engaging in behaviour determined to violate rights), mandatory orders (requiring a person to undertake government officials to take remedial action), and structural interdicts (supervising plans to remedy rights violations).

Under the South African law of delict, available remedies include compensatory damages, an order for specific performance, and a final interdict (usually an order either to prevent harm to a legal right (prohibitory interdicts) or to make good harm already suffered (mandatory interdicts)).

Criminal

Any person convicted of an environmental offence in terms of any environmental statute will be liable for the penalty contained in that statute. The nature and extent of the penalty varies depending on the nature of the offence and the statute. These penalties, however, generally take the form of a fine and / or imprisonment. In the newer legislation the maximum fines are R10 million and the maximum period of imprisonment is 10 years.

In addition to any fine and / or imprisonment contemplated in the environmental statute, if that offence is listed in Schedule 3 of the NEMA (“the Schedule 3 offences”) - for example, failing to take measures to prevent pollution or environmental degradation or failing to comply with an environmental authorisation - the court may impose any of the following additional penalties:

  • Compensating for loss or damage: the Minister of Environment, Forestry and Fisheries or another organ of State or other person concerned may inquire into the amount of damage or loss caused by a Schedule 3 offence.76 Loss or damage may include the costs that are likely to be incurred by the organ of State in rehabilitating the environment or preventing further pollution or environmental degradation. The organ of State or other person will need to provide proof of the loss or damage and the costs thereof. If the court is satisfied with the damage or loss and the costs associated therewith, it may grant an order that will have the “same force and effect and be executable in the same manner as if it has been given a civil action.”77
  • Penalties for any advantage gained: Where a person is convicted of an offence in terms of Schedule 3, the court may assess “the monetary value of any advantage gained or likely to be gained by such person in consequence of that offence.” The court may grant disgorgement, a fine equal to that amount, or other remedial measures.78
  • Paying the costs of suit: The person pursuing the conviction (in the event of a private prosecution), the public prosecutor or any organ of State may apply to court for an order that the convicted person pay the reasonable costs incurred prosecuting the offence.79
  • Employer, Employee, Manager and Agent Liability: Employers can be prosecuted for Schedule 3 offences committed by their employees, managers or agents where i) the employers could be convicted of the offence of which the employees, agent or manager are accused; and ii) the employees, managers and / or agents committed the offence because the employer failed to take reasonable steps to prevent it from occurring. In these circumstances the onus rests on the State to prove beyond a reasonable doubt that the employer should be held responsible. However, if there is proof of an act or omission by the manager, agent or employee resulting in the commission of the Schedule 3 offence, the onus shifts to the employer to prove that he or she took steps to prevent the offence from occurring.80 If an employer is found liable under section 34(5) of the NEMA, they may only be liable for the fine (i.e. not imprisonment) that could be imposed by the legislation governing the Schedule 3 offence and the penalties set out above.
  • Director liability: Any person who is or was a director of a firm that commits a Schedule 3 offence, shall be personally guilty of that offence and liable for the penalty contemplated in the relevant law and the penalties set out above.81 Any proof that the company has committed the offence contemplated in Schedule 3 is prima facie evidence that the director is also guilty and liable for the same penalties. This prima facie proof imposes a reverse onus on the director to prove on a balance of probabilities that he or she should not be guilty of the offence. Reverse onus provisions have generally been declared unconstitutional in South Africa.82 However, there is some support for the view that reverse onus provisions in relation to regulatory offences such as those contemplated in NEMA and Schedule 3 may be constitutionally defensible.83 The constitutionality of this section has not been judicially considered.

In addition to any penalties that may be imposed under NEMA or any other environmental legislation, a court may also impose the following:

  • Award of part of the fine recorded to informant: Where a court imposes a fine, not more than a quarter of the fine may be paid to the person “whose evidence led to the conviction or who assisted in bringing the offender to justice.”84 This award is not available to employees of organs of state or persons employed to enforce / implement environmental legislation.
  • Cancellation of permits: The court may “withdraw any permit or authorisation issued in terms of the NEMA or any specific environmental management act if the holder of the permit abused the rights conferred upon him or her.” The court may further “disqualify that person from obtaining a permit or other authorisation” for five years and notify all the relevant authorities.”85
  • Forfeiture of assets and seized live species: The court may “declare any item including but not limited to any specimen, container, vehicle, vessel, aircraft or document that was used for the purposes of, or in connection with, the commission of an offence and was seized in accordance with the NEMA to be forfeited to the State.”86

Administrative Law

In proceedings for judicial review of administrative action, the court or tribunal may grant any order that is just and equitable, including declaratory and injunctive relief. Additionally, it may grant orders: directing the administrator to give reasons or act in the manner the court or tribunal requires; setting aside the administrative action and remitting the matter for reconsideration by the administrator, or, in exceptional cases, substituting or varying the administrative action or correcting a defect resulting from the administrative action, or directing the administrator or any other party to the proceedings to pay compensation; directing the taking of the decision.

Constitutional Law

The Constitution places positive obligations on the State "to protect, promote and fulfil" fundamental rights. In Fose v Minister of Safety and Security87 the court held that: "…particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated”.88 Accordingly, the Constitution grants South African courts the power and the mandate to remedy constitutional violations.89

Section 38 of the Constitution provides that a court may grant “appropriate relief, including a declaration of rights” where a person’s right in the Bill of Rights has been infringed or threatened. Consequently, in the recent case of Komape and Others v Minister of Basic Education90 the court held that in light of the fact that constitutional damages have, in the past, been awarded in respect of financial loss where such loss would otherwise not have been recovered at common law, the court similarly found that the injuries suffered by the family in this case were being adequately compensated.

In determining whether constitutional damages should be awarded, the court found that the award of constitutional damages would be punitive in nature. It referred back to Fose, which stated that it would be “inappropriate to use [the] scarce resources to pay punitive constitutional damages to plaintiffs who are already fully compensated for the injuries done to them, with no real assurance that such payment will have any deterrent or preventative effect. It would seem that funds of this nature could be better employed on structural and systemic ways to eliminate or substantially reduce the cause of infringement.”91 It follows that the Constitutional Court will award constitutional damages only where compensatory damages are otherwise not recoverable at common law.

B. What remedies have courts ordered in environmental cases to date?

In practice the courts have:

  • overturned decisions to grant permits;
  • imposed fines;
  • required the convicted person to develop and implement rehabilitation plans;
  • ordered the payment of monies to research and government bodies responsible and other persons affected by the unlawful activities;
  • imposed director liability;92 and
  • suspended fines / jail time if the offender commits the offence again.

Additionally, the courts - exercising their power to grant any remedy that is just and equitable under PAJA - have sometimes fashioned their own remedies which were not requested by either party. In one recent case regarding climate change assessments and the granting of an environmental authorisation, the court held that the Minister failed to properly consider the climate change implications of a new coal-fired power plant. However, rather than granting the appellant’s request to set aside the environmental authorisation, the court ordered the Minister to reconsider only one portion of her decision and restart the internal appeal process. The court considered this a “less intrusive” and more “proportional” remedy.93

C. Are there any administrative authorities empowered to act on environmental complaints and if so, how are they empowered to respond to complaints?

Environmental Management Inspectorate

A suspected or actual non-compliance with NEMA or other environmental legislation, authorisations, licences, permits or other instruments may result in authorities being notified (either by way of a written notification or anonymous tip-off via their hotline or reporting to the South African Police Services (“SAPS”)). Following these reports, the environmental management inspectors (“EMIs”) or the SAPS may conduct further investigations which can result in the offending party being issued with a compliance notice.94

EMIs are inspectors appointed by the Minister of Environment, Forestry and Fisheries, the MEC for environmental matters at the provincial level, the Minister of the Department of Water and Sanitation and the Minister of Mineral Resources and Energy, in respect of the various legislation over which they exercise control. The nature and extent of the EMIs mandate will set out which environmental legislation (or part thereof) they may enforce.95

In fulfilling their mandate, EMIs have broad powers to conduct investigations, question any person regarding an act or omission or possible breach of law or permit, inspect or question any person in respect of any book, document, record or electronic record relating to a possible breach of law or a permit, take photographs and samples, dig or bore into the soil, and remove waste.

Following these inspections, the EMIs may issue a notice of intention to issue a compliance notice (“pre-compliance notice”). This pre-compliance notice sets out the various non-compliances that the EMIs identified and allows the recipient of the pre-compliance notice a reasonable time in which to respond to each of the allegations and provide reasons why, in their view, a final compliance order should not be granted. These responses ordinarily set out the measures that have been put in place to rectify any non-compliance.

If the EMIs are not satisfied with the measures contained in the response, they may issue a final compliance notice (“notice”) against the offending party. The notice will set out the measures that must be implemented and the time periods within which these must be achieved. The notice may instruct the offending party to cease operations pending the rectification of certain measures.96

The offending party may object to the notice and submit submissions in this regard. However, an objection does not suspend the offending party’s obligations under the compliance notice unless the offending party obtains specific consent from the competent appellant authority to suspect compliance with the notice pending the finalisation of the objection.97

Finally, EMIs may not directly prosecute cases, but they are empowered to refer cases to the National Prosecuting Authority to pursue and as a result, work closely with prosecutors.98

Duty of care

Under section 28 of the NEMA, “every person” is required to take reasonable measures to prevent pollution from occurring, continuing or recurring. This obligation applies retroactively, incorporating pollution created prior to the promulgation of NEMA. The nature and extent of the reasonable measures required in each case will be determined by the circumstances. If a person fails to exercise the duty of care required of them, the Director-General from the Department of Environment, Forestry and Fisheries, the Director-General from the Department of Mineral Resources and Energy and the Head of Department from a provincial environmental department (“the competent authority”) may issue that person with a directive ordering them to implement specific measures within a prescribed period.

If the recipient of the directive fails to comply with the directive, the competent authority can apply to court for an order compelling the person responsible for the pollution / environmental degradation, the land owner, person in control of the activity that caused the pollution / environmental degradation and / or the person who negligently failed to prevent the pollution / environmental degradation to contribute towards the costs of implementing the reasonable measures.

Under section 28(12) of NEMA, any person may, after giving the relevant authority 30 days’ notice, apply to a competent court for an order directing the relevant authority to take the necessary measures to prevent pollution from occurring, continuing or recurring unless the competent authority informs that person in writing that he or she has directed the offending person to take the relevant steps.

Chapter 9 Institutions

Chapter 9 of the Constitution establishes the South African Human Rights Commission and the Public Protector, both of which are empowered to receive different types of complaints.

Complaints about violations of rights under the Bill of Rights can be lodged with the South African Human Rights Commission (“SAHRC”), whose functions include monitoring, investigating and reporting on the observance of human rights situation in South Africa, and taking steps to secure appropriate redress where human rights have been violated. The SAHRC has a specific Commissioner who focuses on children’s rights under the United Nations Convention on the Rights of the Child. The SAHRC files investigative reports in response to complaints, including in Children’s Rights and Environment and Natural Resources.99

Complaints about government services or conduct may be brought to the Public Protector. The Public Protector has the power to investigate any conduct in State affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct, and to take appropriate remedial action. Similar to the SAHRC, the Public Protector also takes complaints and publishes its investigative reports, but the Public Protector’s main thematic areas relate to corruption and whistleblowers.

In environmental enforcement, activists and watchdog groups have consistently warned that both lack of capacity and political influence hinder the full enforcement of NEMA. For example, fines for pollution and wastewater discharge have only been levied against private companies, not municipalities which may also have been responsible for the environmental damage.100

 
 

IV. Civil and political rights

Freedom of peaceful assembly

A. How is children’s right to engage in peaceful assembly, including protests, protected in national law?

Section 17 of the Constitution provides everyone, including children, with the “right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. In light of South Africa’s history on youth protest and struggle as commemorated on 16 June each year, as well as due to the fact that children are a vulnerable group within society who are not afforded the right to vote until they reach the age of majority,101 this right is especially significant to children in allowing their voices to be heard, and in enabling their involvement in political processes.102

Despite robust constitutional and international law protections for children’s right to participate and protest, many laws predating the Constitution, such as the Regulation of Gatherings Act No 205 of 1993 (the “Gatherings Act”), have not been amended in line with section 17. Therefore, up until recently, children involved in peaceful protests could be arrested and prosecuted if they failed to notify the police before the protest.103 Should such matters come before the courts, they would be obliged to consider the constitutionality of such laws in accordance with the rights of the child. Should the matter proceed to sentencing, the age of the child is likely to be a mitigating factor.

B. Are there any legal limitations on the right of children to engage in peaceful assemblies?

Section 36 of the Constitution is a limitation clause, allowing only those limitations on the rights in the Bill of Rights which are “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” Analysis of limitations must take into account “(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose”. Therefore, when limiting a right afforded to children in terms of the Constitution, such as the right to engage in peaceful assemblies, section 36 of the Constitution will apply in assessing whether the limitation on such a right is reasonable and justifiable.

C. What penalties can be imposed on children for engaging in school strikes?

According to section 12 of the Gatherings Act, provided that a person commits either of the offences as set out in paragraph (a) to (j) of that section, such person may be guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment, or to a fine or to imprisonment for a period not exceeding three years depending on the offence.

Although children may be subject to these penalties, the courts are likely to take into consideration the nature of the offence, the age of the child and whether the child is a first-time offender and, if necessary or desirable under the Child Justice Act,104 divert matters away from the formal criminal justice system.105

Freedom of expression

A. How is children’s right to freedom of expression protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Section 16(1) of the Constitution provides everyone, including children, with the “right to freedom of expression, which includes – (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research”. As mentioned above, various persons - including the child - are entitled to approach a competent court for relief for any violations or threatened violations of this right.

The National Child Rights Committee has stated that it is an ongoing battle to convince the public of the importance of children’s right to freedom of expression, and that the country is still struggling to fully incorporate Article 13 - freedom of expression - of the CRC into its national laws and policies.106

B. Are there any legal limits or restrictions on the right to freedom of expression that specifically apply to children?

As mentioned above, the right to freedom of expression can only be limited in respect of section 36 of the Constitution in that such limitation must be reasonable and justifiable in an open and democratic society taking into account various factors listed in such section.

That said, section 16(2) of the Constitution limits a person’s right to freedom of expression in that such right “does not extend to – (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

The interplay between the right to freedom of expression and the best interests of children and their rights to dignity, equality, and privacy was at issue recently in the Constitutional Court. In the case of Centre for Child Law and Others v Media 24 Limited and Others [2019] ZACC 46, an urgent application was made after major media houses failed to give an undertaking to the applicant that they would not reveal the identity of a child who had recently been “found” by her biological parents after having gone missing for the past seventeen years.107 Section 154(3) of the Criminal Procedure Act No 51 of 1977 (the “CPA”) was at the heart of the dispute.108 This section provides anonymity protections for children below the age of eighteen years old who have been accused or who are to stand as witnesses in criminal proceedings, and prevents the publication of any information that would disclose their identity provided that the presiding judge or judicial officer is of the opinion that it would not be just and equitable for such information to be published. However, as section 154(3) of the CPA does not extend protection to the identity of child victims in criminal proceedings nor does it provide for ongoing anonymity protection to the child accused, survivors and witnesses once they reach the age of majority, the court ruled, inter alia, that this section of the CPA is not in the best interests of the child, and section 154(3) of the CPA was confirmed to be constitutionally invalid.109

In another case, the Constitutional Court upheld a damages award against schoolchildren who created a lewd photoshopped image of their teacher in a sexual position.110 In Le Roux v Dey, three students were barred from leadership positions at school, apologised, and performed community service for creating and disseminating the image, but the teacher filed suit for defamation and injury to his dignity. Upholding the Supreme Court of Appeal, a six-member majority supported the teacher’s claims. The majority considered it “not irrelevant” that the picture was created by schoolchildren, but still held the child appellants to the “reasonable observer” standard, concluding that a reasonable observer would view the pictures as intending to demean the teacher because “there is a line that may not be crossed.”111 The majority also rejected the Freedom of Expression Institute’s amicus arguments both procedurally (because they were not pleaded or raised at trial) and substantially (because the justification that children need to develop their satirical skills “derives no support from our law.”)112

The minority judgement of Yacoob J provides a more robust defence of children’s rights to freedom of expression. Yacoob J recognised that “the right to dignity is at least as worthy of protection as the right to freedom of expression.”113 But, he found that the picture did not constitute defamation because the image could be reasonably interpreted as innocent in light of the fact that it was created by a child. It was “constitutionally mandated” to accept the reasonable, innocent interpretation to give due protection to the rights of the child.104 Crucially, the judgement of Yacoob J also considered the relevant power imbalance between children and teachers in school when deciding that the image was not defamatory.

The majority judgment in this case stands as a limit to children’s freedom of expression, at least in the narrow context of sexually explicit satire in school, but the need to balance the rights of dignity and privacy against children’s freedom of expression will likely continue to arise before the courts.

Freedom of association

A. How is children’s right to freedom of association protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Children are entitled to the full enjoyment of all the rights in the Constitution, including the right to freedom of association in section 18.

B. Are there any legal limits or restrictions on the right to association that specifically apply to children?

As mentioned above, the right to freedom of association (contained in section 18 of the Bill of Rights of the Constitution) is a fundamental constitutional right. However, the right to association is also subject to the limitation clause in terms of section 36 of the Constitution, whereby such a limitation and restriction of the right to freedom of association must be reasonable and justifiable in an open and democratic society.

Access to information

A. How is children’s right to access information protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Section 32 of the Constitution guarantees every person the right to access any information held by the state and any information that is held by another person that is required for the exercise or protection of any rights.115 The Promotion of Access to Information Act116 (“PAIA”) is the national legislation which has been enacted to give effect to the fundamental right of access to information and governs the promotion thereof. Under PAIA, all people in South Africa, including non-nationals, can request information from public and private bodies. In giving effect to such a right, there are justifiable limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance, as well as those considering a balance with any other rights, including the rights in the Bill of Rights of the Constitution.

Notably, one of the most important provisions of PAIA is the ‘public interest override’ provision (Mandatory disclosure in public interest contained in section 46 of PAIA) wherein an information office must grant a request for access to a record if:

  • (a) the disclosure of the record would reveal (i) evidence of a substantial contravention of, or failure to comply with, the law; or (ii) an imminent and serious public safety or environmental risk;117 and
  • (b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the ground of refusal.118

This theme is evident throughout PAIA, for example, sections dealing with the mandatory protection of information119 state that a record may not be refused insofar as it consists of information “about the results of any product or environmental testing or other investigation supplied by, carried out by or on behalf of a public body, and its disclosure would reveal a serious public safety or environmental risk.”120

In its initial report to the Committee on the Rights of the Child in 1997, South Africa focused on protecting children from “inappropriate information” rather than guaranteeing positive access.121 Now, section 13 of the Children’s Act 2008 deals specifically with a child’s right to information in respect of health care and reads that, “every child has the right to:

  • (a) have access to information on health promotion and the prevention and treatment of ill-health and disease, sexuality and reproduction;
  • (b) have access to information regarding his or her health status;
  • (c) have access to information regarding the causes and treatment of his or her health status; and
  • (d) confidentiality regarding his or her health status and the health status of a parent, care-giver or family member, except when maintaining such confidentiality is not in the best interests of the child.”122

Additionally South Africa’s Media Monitoring Africa is working with Save the Children and Zambia’s Media Network on Child’s Rights and Development on a project “to ensure that children’s rights are respected in the media,” as well as broadening children’s access to appropriate and relevant information.123

B. Are there any legal limits or restrictions on the right to access information that apply specifically to children?

The constitutional provisions related to access to information and the restrictions thereof apply to children in general. Access to information may be limited and/or restricted under section 36 of the Constitution where such limitation is reasonable and justifiable in an open and democratic society.

PAIA limits a child’s right to access to information in certain instances. Under section 30 and section 61, if a person under the age of 16 years wishes to request access to a record provided by a health practitioner pertaining to physical or mental health or well-being either (a) relating to themselves; or (b) if a request is made on behalf of a person to whom the record relates, relating to that person (the “requester”), such a request must be made by a parent or guardian of the requester.

The right to access to information in terms of the Constitution and PAIA (specifically in relation to personal information) is further limited and restricted by the Protection of Personal Information Act124 (“POPI”). POPI has, as of 1 July 2020, come into full effect125 and will amend PAIA,126 becoming the main piece of legislation regulating the protection of personal information.127

POPI recognises and gives effect to section 14 of the Constitution which provides the right to privacy and includes the right to protection against the unlawful collection, retention, dissemination and use of personal information. Therefore, the right to access to information is restricted and limited in accordance with the provisions of POPI wherein both the right to privacy and the right to access to information are balanced in a manner that gives effect to each such right subject to justifiable limitations that are aimed at protecting other fundamental rights and important interests. POPI affords every person the right to, inter alia, have their own personal information protected, be told if someone is collecting, storing and sharing their personal information (unlawfully) and whether their personal information has been accessed by an unauthorised person, and the right to require that their personal information be corrected or destroyed, or to object to their personal information being processed.

In the context of protection afforded to children in terms of POPI, section 34 states that a “responsible party”128 may not process personal information pertaining to children save for the exceptions contemplated in section 35. These exceptions include, inter alia:

  • (a) prior consent of a “competent person”;129
  • (b) that the processing of such information is necessary for the establishment, exercise or defence of a right or obligation in law; or
  • (c) the personal information has deliberately been made public by the child with the consent of a competent person.

In terms of section 22 of POPI, in the event that personal information has been acquired by an unauthorised person, the “responsible party” must notify (a) the Regulator and (b) subject to section 22(3),130 the “data subject”131 (provided that the data subject’s identity can be established). Non-compliance with the provisions of POPI can result (as contemplated in chapter 11) in, inter alia, administrative fines or even imprisonment.

Section 272 of the Children’s Act (Access to Information) states that, subject to section 248 of the Children’s Act (regarding access to the adoption register), the Central Authority132 may disclose to a person only older than 18 years old who, as a child, was adopted in accordance with the Hague Convention on Intercountry Adoption, any information in the records of the Central Authority concerning that person’s origin.

C. Does the national curriculum for schools include environmental education?

Yes, the South African national curriculum for schools includes environmental education through the Environmental Education Policy Initiative. The Initiative states that environmental education is included as a key principle and provides a platform for the establishment of an Environmental Education Curriculum Initiative to ensure that environmental concerns form part of the educational curriculum for South Africa.133

The environmental curriculum (which has evolved since the 1994 democratic election in line with the National Curriculum Statement) is underpinned by Constitutional principles, including the right to a healthy environment. When the African National Congress and partners produced a White Paper on Education and Training (published in 1995), the document stated that environmental education and training was necessary for all levels and sectors of society. Today, education policies continue to articulate well with environmental policies such as those mentioned above. This is the result of a considerable history of state environmental and education departments working with civil society and international donor partners to ensure that environmental learning is articulated in the South African national school curriculum. Additionally, there has been a shift from learning “about the environment” to “educating learners in the natural environment (experiential learning)”.134

The National Curriculum Statement Grades (grades R to 12) gives expression to the knowledge, skills and values worth learning in South African schools and plays a vital role in creating awareness of the relationship between human rights, a healthy environment, social justice and inclusivity. In this regard, the National Curriculum Statement focuses on the use of school subjects, such as science and technology, to enable learners to effectively and critically show responsibility towards the environment and the health of others.135

***

End notes

1 Earthlife Africa Johannesburg v. The Minister of Environmental Affairs and Others, ZAGPPHC [81] Case No. 65662/16 (8th March 2017). Available here.


2 H-A. Rother, S. Wijesekerab and F. Ward, The impact of the environment on South Africa’s child and adolescent health: An overlooked health risk, in South African ChildGauge (2019), Child and Adolescent Health, Leave No One Behind, Children’s Institute University of Cape Town (pp.264). Available here.


3 See e.g. Hichange Investments (Pty) Ltd v Cape Products Company (Pty) Ltd t/a Pelts Products & Others 2004 JDR 0040 (E) [2004] JDR 0040 p.20-21 (the court applied a statute defining pollution as odours affecting “human health and well-being”). Available here.


4 Fuel Retailers Association of SA (Pty) Ltd v Director-General, Environmental Management, Mpumalanga, and Others, Case CCT 67/06 [2007] ZACC 13. Available here.


5 Ibid at [45].


6 Ibid at [59].


7 Trustees for the time being of Groundwork Trust and Another v Minister of Environmental Affairs and Others (39724/2019) [2022] ZAGPPHC 208 (18th March 2022). Available here.


8 BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment & Land Affairs [2004] 3 All SA 201 (W) Case No. 03/16337 at [26] (internal citations omitted). Available here.


9 Ibid.


10 Fuel Retailers at [59] (emphasis added).


11 BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment & Land Affairs [2004] 3 All SA 201 (W) Case No. 03/16337


12 Ibid. p. 24 (emphasis added).


13 Ibid. (emphasis added).


14 Ibid. p. 2 (emphasis added).


15 Company Secretary of Arcelormittal South Africa v Vaal Environmental Justice Alliance [2014] ZASCA 184 (26th November 2014) Case No. 69/2014 at [3] and [84]. Available here.


16 WWF South Africa v Minister of Agriculture, Forestry and Fisheries and others (South African Small-Scale Fisheries Collective as amicus curiae) [2018] 4 All SA 889 (WCC) Case No. 11478/18. Available here.


17 Ibid at [93].


18 Trustees for the time being of Groundwork Trust and Another v Minister of Environmental Affairs and Others [2022] ZAGPPHC 208 (18 March 2022) Case No. 39724/2019 at [41] (emphasis in original). Available here.


19 Available here.


20 Available here.


21 Available here.


22 Available here.


23 Available here.


24 Available here.


25 Available here.


26 Available here.


27 Available here.


28 Available here.


29 Available here.


30 Section 146-148 of the NWA. See e.g. The Trustees of the Groundwork Trust v Acting Director General: Department of Water and Sanitation and Another (21 July 2020). Available here.


31 See B. Schreiner, Viewpoint – Why Has the South African National Water Act Been so Difficult to Implement?, Water Alternatives 6(2): 239-245. Available here, and E. Couzens, D. Maduramuthu, A. Bellengère, Water Security and Judicial and Administrative Confusion in South Africa: The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 ν MEC for the Department of Water Affairs, Gauteng 2015 ZAGPPHC 211(17 April 2015), Potchefstroom Electronic Law Journal (PELJ) (2017) Vol. 20 No.1 pp.1-26. Available here.


32 N. Okonjo-Iweala, Africa can play a leading role in the fight against climate change, Foresight Africa 2020 Report, Brookings Institution (8th January 2020). Available here.


33 Climate Change Bill [B9- 2022]. Available here.


34 Centre for Child Law, Submissions on the Climate Change Bill [B9-2022]. Available here.


35 National Health Environmental Policy, Government Gazette No. 37112 (4th December 2013). Available here.


36 Ibid, “Children under the age of five years are most susceptible to waterborne diseases, particularly diarrhoea. International experience indicates that the incidence of water-borne diseases is approximately five times higher among children living in informal settlements than it is among children in formal urban areas with sanitation and water supply. The differential in terms of child mortality rates from diarrhoea may be as great as 500:1.” at para 7.5.1.


37 Ibid.


38 Regulations for the Prohibition of use, manufacturing, import and export of asbestos and asbestos containing materials, GN R341 of (2008) and Regulations to phase out the use of Polychlorinated Biphenyls (PCBs) materials and Polychlorinated Biphenyl (PCB) contaminated materials, GN R549 of (2014). Available here, and available here.


39 The employment of a child under 15 remains generally prohibited, with an exception being made in the code of good practice for employment of children in the performance of advertising, artistic or cultural activities.


40 Act 75 of (1997). Available here.


41 Act 85 of (1993). Available here.


42 Basic Conditions of Employment Act, No.75 of (1997), Regulations on Hazardous Work by Children in South Africa, Government Gazette No. 82 (859), 4910. Available here.


43 Ibid. Regulation 2(2).


44 “Child worker” means any child who:

  • (i) is employed by or works for an employer and who receives or is entitled to receive any remuneration; or
  • (ii) who works under the direction or supervision of an employer or any other person.


45 Basic Conditions of Employment Act, No.75 of (1997), Regulations on Hazardous Work by Children in South Africa, Government Gazette No. R7, G. 32862. Available here.


46 Ibid. Regulation 8.


47 Act No. 83 of (1993). Available here.


48 Ibid.


49 See Supra at No. 2.


50 World Health Organisation, Report to the IFCS by the IOMC Pollutant Release & Transfer Register Co-ordinating Group (1 Sept 1998). Available here.


51 M. Watney, A South African perspective on mutual legal assistance and extradition in a globalised world, Potchefstroom Electronic Law Journal Vol. 15 No. 2 (2012). Available here. See e.g. The State and One Other v. Henry Emomotimi Okah, Case CCT 315/16 and CCT 193/17 (CC). Available here.


52 Hogan Lovells, Territorial application of the LRA, (Oct 2014). Available here.


53 National Environment Management: Air Quality Act 39 of (2004), Section 50(1). Available here.


54 Children’s Act 38 of (2005). Available here.


55 Ibid. Section 15.


56 Ibid. Section 14.


57 No. 3 of (2000): Promotion of Administrative Justice Act, (2000). Available here.


58 No. 14 of (2009): National Environmental Laws Amendment Act, (2009). Amended Section 28(14). Available here.


59 No. 107 of (1998): National Environmental Management Act, (1998). Section 33: Private Prosecution. Available here.


60 Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, Case No. CC82/2017. Available here.


61 No. 107 of (1998): National Environmental Management Act, (1998). Section 33(2): Private Prosecution. Available here.


62 Ibid. Section 33(3): Private Prosecution.


63 Trustees for the time being of Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others (Case No. 050/2012) [2012] ZASCA 182; 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA) (29 November 2012). Available here.


64 Ibid.


65 Ibid at [20].


66 Children of Kabwe Case, Case No. 2020/32777. Available here.


67 See Business & Human Rights Resource Centre, Lawsuit filed in South Africa against Anglo American for alleged mass lead poisoning of children in Zambia, (21st October 2020). Available here, and Children of Kabwe. Available here.


68 A curator ad litem legally assists children in litigation and is appointed "to avoid injustice”.


69 C. Theophilopoulos et al, Fundamental Principles of Civil Procedure, (2017) 3rd edition, at [116]. Available here.


70 Prescription Act 68 of (1969), Section 10(1). Available here.


71 Ibid. Section 12(3): the debt becomes due when the injured person has knowledge of the identity of the debtor and of the facts from which the debt arises, provided that the injured person shall be deemed to have such knowledge where he/she could have acquired it by exercising reasonable care.


72 See e.g. The Trustees of the Time Being of the Lucas Scheepers Trust and Others v MEC for the Department of Water Affairs, Gauteng and Others [2015] ZAGPPHC 211 (17 April 2015) (where the Gauteng High Court dismissed applicants’ challenge to section 25 of the NWA because, by failing to appeal their case to the Water Tribunal first, they had not exhausted all internal remedies). Available here.


73 Promotion of Administrative Justice Act No 3 of (2000). Available here.


74 For an environmental case law example, see e.g. South Durban Community Environmental Alliance v. MEC for Economic Development, Tourism, and Environmental Affairs: Kwazulu-Natal Provincial Government and Another [2020] 2 All SA 713 (SCA) Case No. 231/19. Available here.


75 See e.g. Centre for Environmental Rights. Available here.


76 No. 107 of (1998): National Environmental Management Act, (1998). Section 34(1): Criminal Proceedings. Available here.


77 Ibid. Section 34(2).


78 Ibid. Section 34(3).


79 Ibid. Section 34(4). See e.g. Supra at No.60 Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd.


80 Ibid. Section 34(5).


81 Ibid. Section 34(9)(b).


82 See eg. S v Coetzee (1997) (4) BCLR 437 (CC) Case No. CCT 50/95. Available here.


83 See the minority judgement of Kentridge AJ in S v Coetzee and Others (CCT50/95) [1997] ZACC 2; 1997 (4) BCLR 437; 1997 (3) SA 527 (6 March 1997). Available here.


84 No. 107 of (1998): National Environmental Management Act, (1998). Section 34B(1): Criminal Proceedings. Available here.


Ibid. Section 34C(1).


86 Ibid. Section 34D(1).


87 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June 1997). Available here.


88 Ibid, at [69].


89 President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre Amici Curiae) [2004] (6) SA 40 (SCA) at [18]. Available here.


90 Komape and Others v Ministry of Basic Education [2019] ZASCA 192. Case No. 754/2018 and 1051/2018 Available here.


91 Supra at No.87. Fose at [72].


92 For a detailed exploration of director liability for climate change and environmental risks, see C Reddell, Directors’ Liability and Climate Risk: South Africa - Country Paper, Commonwealth Climate and Law Initiative (April 2018). Available here.


93 Earthlife Africa Johannesburg v. The Minister of Environmental Affairs and Others, Case No. 65662/16 ZAGPPHC 58, 81 (8 March 2017) at [120-122] Available here.


94 No. 107 of (1998): National Environmental Management Act, (1998). Section 31H: Access to environmental information and protection of whistle-blowers. Available here.


95 Ibid. Section 31B.


96 Ibid. Section 31L.


97 Ibid.


98 Department for Forestry, Fisheries, and the Environment, Environmental Management Inspectorate. Available here.


99 See e.g. The South African Human Rights Commission, Final Investigative Report (relating to a complaint of sewage spillage from a wastewater treatment plant), File Ref No. MP/1819/0359. Available here.


100 F. J.W. Herbig, Talking dirty - effluent and sewage irreverence in South Africa: A conservation crime perspective, Cogent Social Sciences, Vol. 5, Issue. 1 (2019). Available here.


101 N. Ally, Failing to respect and fulfil South African law and the right to protest for children, (2017) SA Crime Quarterly No. 62 at [34]. Available here.


102 Mlungwana and Others v The State and Another, Case No. CCT 32/18 [2018] ZACC 45 at [72]. Available here.


103 Ibid.


104 No. 75 of 2008: Child Justice Act, (2008). Available here.


105 Ibid. Section 53.


106 Article 19, Kid’s Talk Freedom of Expression and the UN Convention on the Rights of the Child, at [63]. Available here.


107 Centre for Child Law and Others v Media 24 Limited and Others, Case No. CCT 261/18 [2019] ZACC 46 at [5]; [2020] (3) BCLR 245 (CC); [2020] (1) SACR 469 (CC); [2020] (4) SA 319 (CC) (4 December 2019) Available here.


108 No. 51 of 1977: Criminal Procedure Act, (1977). Available here.


109 Centre for Child Law and Others v Media 24 Limited and Others, Case No. CCT 261/18 [2019] ZACC 46 at [128].


110 Le Roux and Others v Dey, Case No. CCT 45/10 [2011] ZACC 4; [2011] (3) SA 274 (CC); [2011] (6) BCLR 577 (CC) (8 March 2011). Available here.


111 Ibid at [118].


112 Ibid.


113 Ibid at [45].


114 Ibid at [53].


115 The Constitution of the Republic of South Africa No. 108 of (1996), Section 32. Available here.


116 No. 2 of 2000: Promotion of Access to Information Act (2000). Available here.


117 “Public safety or environmental risk” means harm or risk to the environment or the public (including individuals in their workplace) associated with—

  • a product or service which is available to the public;
  • a substance released into the environment, including, but not limited to, the workplace;
  • a substance intended for human or animal consumption;
  • a means of public transport; or
  • an installation or manufacturing process or substance which is used in that installation or process.


118 No. 2 of 2000: Promotion of Access to Information Act (2000). Section 46. Available here.


119 Ibid. Section 36 (mandatory protection of commercial information of third parties), section 42 (mandatory protection of records privileged from production in legal proceedings) and section 68 (commercial information of private body).


120 Ibid. Sections 36(2)(c), 42(5)(c), 46(a)(ii), 68(2) and 70(1).


121 see Supra at No.106 at page. 65.


122 Children’s Act 38 of (2005). Section 13. Available here.


123 C. O’Kane, Pushing the Boundaries: A guide to increasing the realisation of children’s civil rights and freedoms, Save the Children (2013). Available here.


124 Act No. 4 of 2013 Protection of Personal Information (POPI) Act (2013). Available here.


125 Save for the definition section of POPI, provisions relating to the Information Regulator in Part A of chapter 5, Section 112 (regulations) and Section 113 (procedure for making regulations) which were in effect as of 2014.


126 PAIA has also been amended by the Cybercrimes and Cybersecurity Bill, 2015, since the coming into effect of POPI.


127 There will be a 1 (one) year grace period, as referred to in Section 114(1), wherein the Regulator will start enforcing compliance with POPI.


128 Under POPI, a “responsible party” has been defined as “a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information”.


129 Under POPI, a “competent person” has been defined as “any person who is legally competent to consent to any action or decision being taken in respect of any matter concerning a child”.


130 Section 22(3) provides that a delay in notification can only occur “if a public body responsible for the prevention, detection or investigation of offences or the Regulator determines that notification will impede a criminal investigation by the public body concerned”.


131 Under POPI, a “data subject” has been defined as “the person to whom personal information relates”.


132 (1) For purposes of the Hague Convention on Intercountry Adoption:

  • (a) in relation to the Republic, means the Director-General; or
  • (b) in relation to a convention country, means a person or office designated by such convention country under Article 6 of the Hague Convention on Intercountry Adoption.

(2) The Director-General, after consultation with the Director-General: Justice and Constitutional Development, must perform the functions assigned by the Convention to Central Authorities.


133 L. Le Grange & C. Reddy, Environmental education and outcomes-based education in South Africa: A marriage made in heaven?, South Africa Journal of Environmental Education (1997). Available here.


134 M. Peden, Review of Environmental education: some South African perspectives, Journal of Education 40:170-174, (January 2006). Available here.


135 P. Ramsarup, Cases of recontextualising the environmental discourse in the National Curriculum Statement (R-9), Masters Dissertation, Rhodes University, (2005). Available here.