The National Environmental Management Act

In addition to the Constitution, we also have special environmental legislation in South Africa: the National Environmental Management Act (NEMA). This new Act follows the principles of the Constitution and gives detail to the constitutional rights.

What does NEMA say?

1. We all have a right to sustainable development; therefore all important environmental factors must be considered before development decisions are taken (section 2).

Every person has the right that the Government will make rational decisions that address the needs of people and ensure that development is socially, environmentally and economically sustainable.

The environmental factors that must be taken into account include:

• not disturbing ecosystems and cultural assets
• not polluting and wasting resources
• being responsible and cautious when using resources where the effects are uncertain.

2. All stakeholders have the right to be consulted on impact assessments (section 2 and chapter 5)
The social, economic and environmental impacts of activities must be considered and the people affected must be consulted before decisions are made.

3. Everyone has the right to participate in dispute resolution (chapter 4)
If there is a dispute about the environment, anyone can ask the decision-maker to appoint an independent person to investigate the matter and chair meetings where all arguments and facts can be heard.

4. Everyone has the right to refuse to do hazardous work (section 29)
A worker cannot be held liable or be disciplined for refusing to do work that the worker honestly believes will be an immediate or serious threat to the environment.

5. Everyone has the right to report risks (section 31)
A person cannot be held liable or be disciplined for reporting what is honestly believed to be an environmental risk to a public authority or in the public interest.

6. Everyone has the right to information (section 31)
The State may obtain information that is necessary to fulfil its environmental responsibilities and any member of the public may obtain such information from the State as long as it is in the public interest.

This means that those that are responsible for threats to the environment, emissions into the soil, water or the air or handling hazardous waste is under obligation to report thereon.

7. Everyone has the right to demand that the environment is taken care of (section 28)
All persons must take care of the environment. Maintaining the integrity of the natural environment is not just Governments responsibility. It is the responsibility of each and every citizen. A culture of personal ownership of the environment needs to be developed.

Any person who harms the environment must take reasonable measures to avoid or minimise such harm even if the harm was authorised by law.

A responsible environmental officer may order any person who harms the environment to take remedial measures, and if a responsible officer does not do so, any member of the public can make a court application to enforce the duty of care.

8. Everyone has the right to legal standing to enforce environmental laws (section 32 and 33)
Any person who is concerned with the protection of the environment may make a court application or act as criminal prosecutor to enforce environmental rights and laws, and such a person can recover the costs of the court proceedings.

If your legal rights are not respected, you can:

• take your case to court
• complain to the Human Rights Commission and the Public Protector
• ask advice from the special officer in the national Department of Environmental Affairs and Tourism who must deal with complaints
• ask your local, provincial or national government to appoint a conciliator
• complain to the police.