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This is Category: Commentary and Papers
Following are the News Items published under this Category.
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The recent Western Cape High Court judgment by Mister Justice Fourie in the matter of Seafront for All & Another v The MEC: Environmental and Development Planning, Western Cape Provincial Government and 3 Others[1] brought to an end a protracted legal battle involving the preservation of one of Cape Town's most valued multi-cultural and multi-racial public open spaces, the Sea Point Promenade.
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It is trite that the NEMAQA is a departure from a purely "point source" approach to regulation of air emissions as envisaged in the APPA to include a more progressive regulation of ambient air quality in general. The much anticipated remaining provisions of the National Environmental Management: Air Quality Act 39 of 2004 ("NEMAQA") finally came into effect on 1 April 2010 in terms of Government Notice No. 220 of 26 March 2010. In addition, in terms of GN 248 of 31 March 2010 ("GN 248"), the list of activities resulting in atmospheric emissions which have or may have a significant detrimental effect on, inter alia, the environment[1] and the minimum emission standards for these activities as contemplated in section 21 of the NEMAQA also commenced with effect from 1 April 2010.
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Employers are charged with certain functions and responsibilities in terms of either the Occupational Health and Safety Act, 85 of 1993 ("OHSA") or the Mine Health and Safety Act, 29 of 1996 ("MHSA"). These acts assume that employers in certain industries or of a particular size is however unable to perform the functions itself and must therefore rely on an appointment structure, which consists of various managers and other appointed persons, to perform the functions and responsibilities which are entrusted to the employer in terms of either the OHSA or the MHSA, on behalf of the employer.
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As part of the criteria for criminal prosecution of environmental crimes in terms of the Practice Note on the Principles of Enforcement of Environmental Legislation (Including Criteria for Criminal Prosecution and the Provision of Zero Tolerance Offences issued on behalf of the Environmental Management Inspectorate by the Department of Environmental Affairs) no person will be prosecuted for not being in possession of a valid authorisation if that person has taken all reasonable measures to obtain such an authorisation.
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In the matter of Joubert & Others v Maranda Mining Company, the Supreme Court of Appeal ("SCA") was asked to consider judgement by the North Gauteng High Court of 11 April 2009 in which the appellants were interdicted and restrained from refusing Maranda Mining access to a mining right area in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRDA").
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Judgment was handed down in the Supreme Court of Appeal (SCA) on 11 September 2009 in the Nature's Choice Properties (Alrode) (Pty) Ltd vs the Ekurhuleni Metropolitan Municipality matter. The SCA held that the Municipality misconstrued its discretion in terms of the Smoke Control Regulations promulgated in terms of section 18 of the Atmospheric Pollution Prevention Act, 45 of 1965. The SCA upheld the appeal and set aside the interdict and order to remove the boiler installed by Nature's Choice which was initially granted by the Court a quo in favour of the Municipality.
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A recurring feature of South Africa's national environmental management legislation is the delegation of lawmaking powers to the Minister (including the possibility for further delegation to Provincial Ministers). Such delegated lawmaking powers enables the Minister to give effect to and to flesh out the original legislation and are a common and expected feature of primary legislation (also known as enabling or original legislation).
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The long awaited judgment in the matter of the trustees for the time being of the Biowatch Trust ("Biowatch") vs. The Registrar: Genetic Resources & Others was handed down in the Constitutional Court on 3 June 2009. Judge Sachs set aside certain costs orders awarded against Biowatch in the lower courts as more fully set out hereunder.
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The new Electrical Installation Regulations were promulgated in terms of the Occupational Health and Safety Act 85 of 1993 in Government Notice No. 242 of 6 March 2009 ("the New Regulations"). These Regulations repeal the Electrical Installation Regulations, 1992, promulgated in Government Notice R. 2920 of 23 October 1992 ("the Old Regulations"). The new Regulations came into effect on 1 May 2009, save for regulation 5(6) which will only come into effect on 1 April 2010.
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In the recent High Court case of Tergniet And Toekoms Action Group And Others V Outeniqua Kreosootpale (Pty) Ltd (case number 10083/2008) the matter of emission of pollutants into the atmosphere in terms of the Atmospheric Pollution Prevention Act No 45 of 1965 (hereafter 'APPA') was raised yet again.
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In the recent judgement in the Pretoria High Court in the matter of Agri South Africa vs. The Minister of Minerals and Energy, Judge Hartzenberg held that it is possible for holders of "unused old order rights" (as defined in Schedule II to the MPRDA) to prove that they were under certain circumstances expropriated of their rights with the commencement of the MPRDA on 1 May 2004.
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In the September/October 2008 issue of the Environmental Management magazine Tandina Charters discusses the rectification of unlawful commencement of listed activities under section 24G of the National Environmental Management Act 107 of 1998.
Follow this link to read the article.
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The Health Professions Council of South Africa, under section 61A (1)(L) read with section 35 of the Act, made rules relating to the registration by dental therapists and oral hygienists of additional qualifications. See Government Notice No. 58 of Government Gazette No. 31190 of 4 July 2008.
The President of the Republic of South Africa made a proclamation under section 58 of the Health Professions Amendment Act, 2007, determining 1 August 2008 as the date on which sections 1 ? 13; 15; 17 ? 29; and 31 ? 58 of the Act will come into operation. See Government Notice No. 30 of Government Gazette No. 31251 of 18 July 2008.
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The Minister of Minerals and Energy, under section 35(4) of this Act, promulgated the electricity regulations for compulsory norms and standards for reticulation services. See Government Notice No. 773 of Government Gazette No. 31250 of 18 July 2008.
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The Minister of Minerals and Energy, under section 6(4) of this Act, published the co-operative agreement signed between the National Nuclear Regulator and the Department of Environmental Affairs and Tourism in respect of the monitoring and control of radioactive material or exposure to ionising radiation. See Government Notice No. 759 of Government Gazette No. 31232 of 18 July 2008.
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The Minister of Water Affairs and Forestry, under section 7(3)(a) of this Act, declared the natural forest types, as set out in the Schedule A to this Notice as natural forests. The effect of this declaration is that in terms of section 7(1) of this Act, no person may cut, disturb, damage or destroy any indigenous tree in, or remove or receive any such tree from a natural forest except in terms of a license or exemption from the provisions by the Minister in the Gazette. See Government Notice No. 762 of Government Gazette No. 31232 of 18 July 2008.
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The Minister of Agriculture, under section 23 of this Act, amended the regulations published by Government Notice No. R.1086 of 3 November 2006 relating to sterilizing plants, appeals and imports. See Government Notice No. 736 of Government Gazette No. 31221 of 11 July 2008.
The Minister of Agriculture, under section 23 of this Act, amended regulations relating to fertilizers, farm feeds, agricultural remedies and stock remedies, sterilizing plants and pest control operators, appeals and imports. See Government Notice No. 737 of Government Gazette No. 31221 of 11 July 2008.
The Minister of Agriculture, under section 23 of this Act, amended the Table setting out "fees payable" in regard to various regulations relating to fertilizers, farm feeds, agricultural remedies and stock remedies, sterilizing plants and pest control operators, appeals and imports. See Government Notice No. 755 of Government Gazette No. 31233 of 18 July 2008.
The Minister of Agriculture, under section 23 of this Act, amended the Table setting out "fees payable" in regard to fertilizers, farm feeds, agricultural remedies and stock remedies, sterilizing plants and pest control operators, appeals and imports. See Government Notice No. 786 of Government Gazette No. 31257 of 25 July 2008.
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The Minister of Environmental Affairs and Tourism, in terms of section 8 of the Act, declared the Member of the Executive Council for Economic Development, Environment and Tourism in the Limpopo Province as the Authority responsible for Makapan Valley World Heritage Site for a term of five years subject to a performance review. See Government Notice No. 738 of Government Gazette No. 31220 of 11 July 2008.
The Minister of Environmental Affairs and Tourism, in terms of section 8 of the Act, declared the Member of the Executive Council for Sports, Arts and Culture in the Northern Cape Province as the Authority responsible for Richtersveld Cultural and Botanical Landscape World Heritage Site for a term of five years subject to a performance review. See Government Notice No. 739 of Government Gazette No. 31220 of 11 July 2008.
The Minister of Environmental Affairs and Tourism, in terms of section 8 of the Act, declared the Member of the Executive Council for Agriculture, Conservation and Environment in the North West Province as the Authority responsible for Tuang Skull Fossil World Heritage Site for a term of five years subject to a performance review. See Government Notice No. 740 of Government Gazette No. 31220 of 11 July 2008.
The Minister of Environmental Affairs and Tourism, in terms of section 8 of the Act, declared the KwaZulu-Natal Nature Conservation Board in the KwaZulu-Natal Province as the Authority responsible for uKhahlamba Drakensberg Park World Heritage Site for a term of five years subject to a performance review. See Government Notice No. 741 of Government Gazette No. 31220 of 11 July 2008.
Please note that a correction notice has been published under this Act, in terms of Government Notice No. 1197 of Government Gazette No. 30590 of 18 December 2007, substituting existing diagrams with diagrams of Cradle of Humankind World Heritage Site. See Government Notice No. 742 of Government Gazette No. 31220 of 11 July 2008.
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The Minister of Environmental Affairs and Tourism has in terms of subsection (1)(b), 2(g) and 2(y) of section 77 of this Act, made regulations relating to the management of white shark cage diving as set out in the Schedule thereto. See Government Notice No. 724 of Government Gazette No. 31211 of 4 July 2008.
The Minister of Environmental Affairs and Tourism has in terms of subsection (1)(b), 2(g) and 2(y) of section 77 of this Act, made regulations relating to the management of boat-based whale watching and the protection of turtles as set out in the Schedule thereto. See Government Notice No. 725 of Government Gazette No. 31212 of 4 July 2008.
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The judgement in De Beers v Ataqua Mining (Pty) Ltd and Others has far reaching implications for the mine residue reclamation industry. Kenneth Cameron discusses some of the possible unintended consequences of this judgement as it relates to the disposal of waste from certain reclamation operations.
Select "Read More" below
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The National Environmental Management Laws Amendment Bill was published in the Government Gazette on the 20th of May 2008.The closing date for comments is 30 days from the date of publication.
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In the matter of Qualidental Laboratories v Heritage Western Cape [2007] SCA 170 (RSA), the suppreme court of appeal held that a provincial heritage resources authority may impose conditions to a demolition permit in terms of section 34(1) and 48(2) of the National Heritage Resources Act 25 of 1999 retricting the construction of another building obscuring the view to the remainder of a building under certain circumstances.
Select "Read more" below for more information.
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Bennie Pieterse explores the rights of employees to claim damages in terms of common law and to institute action for unfair dismissal in terms of the Labour Relations Act 66 of 1995 through the analyses of the common law and various key court decisions. Select "Read more" below to read the article.
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Kenneth Cameron addresses certain misconceptions on the availability and scope of exemption options pertaining to the Environmental Impact Assessment regime under the National Environmental Management Act 107 of 1998...
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The appeal judgement in the matter of Fuel Retailers Association v DG, Environmental Management, Mpumalanga (2006) SCA 109 RSA) on 22 September 2006 held that a decision by a local authority to approve a particular zoning prior to the finalisation of an Environmental Impact Assessment (EIA) may be accepted by the relevant environmental authority as adequately illustrating the "need and desirability" of the development. The judgement also clearly illustrates that approval of an EIA by the relevant environmental authority, subject to the subsequent obtaining of a water use license (and by implication any other relevant authorisations), does not render such a decision invalid.
Follow this link for a transcript of the judgement
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The failure by functionaries to properly consider all the facts presented to it in support of applications submitted in terms of section 22 of the Environment Conservation Act 73 of 1989 (ECA) (application for authorisation of a listed activity and undertaking of an Environmental Impact Assessment (EIA)) or in terms of appeal proceedings in terms of section 35 of the ECA, was recently considered by the judiciary in the matter of Hentru Developers & Contractors CC v Hanekom NO & another 2005 JOL 15650 (T).
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