Critical analysis of the law on duty of care to the environment in South Africa :challenges and prospects

Abstract

Considering that South Africa is part of the world initiatives to ensure maximum protection of the environment for the sake of the present and future generations, if the environment is abused or degraded, there is need to sanction perpetrators accordingly. Reasonable measures should be taken to prevent harm from occurring to the environment or those harms that cannot reasonably be avoided or stopped, be minimized and steps taken to rectify such harm to the environment. Environmental care and management is principally recognised and regulated by the National Environmental Management Act 107 of 1998. This framework imposes a general duty of care for the environment (that is, every person has the duty to avoid pollution and environmental degradation). Both implementers and enforcers rely on this duty when enforcing environmental obligations. The duty of care has a retrospective effect, meaning that it is imposed on anyone who causes, has caused or may cause significant pollution or degradation to the environment. This study highlights the consequences for violating the duty of care as enshrined in NEMA particularly by people who are destroying the environment in the name of development. It argues for stringent implementation and enforcement mechanisms in order to bring perpetrators to justice. The study further deals with comparative analysis between South Africa, Australia and England where lessons are derived to help South Africa better its environmental laws and policies to ensure maximum protection of the environment.