By Kevin O’Reilly
The Law Society of South Africa’s (LSSA) Environmental and Climate Justice Committee (the Committee) met on 8 November 2023 to discuss a number of issues within its area of specialisation. The following were among those issues discussed.
South African Law Reform Commission (SALRC) Project 142: Discussion Paper 150 – Investigation into Legal Fees
The SALRC released its report in March 2022 and sent a final report with recommendations to the Minister. Although not being open for public comment, the LSSA provided feedback on the report to the Minister. The LSSA has repeatedly requested a meeting with the Minister to discuss the report, given that the report is not open for public comment. Although the recommendations that came out of the discussion paper do not directly impact on environmental issues it does impact all legal practitioners in a significant way.
Rendering of community service by candidate legal practitioners and practising legal practitioners
The amendments of regulations concerning the rendering of community service by practising legal practitioners and candidate legal practitioners published on 11 August 2023 were also noted. The Committee noted that the profession is waiting for the Legal Practice Council (LPC) to provide guidance on it. The Committee observed that the regulations lack clarity and will likely be challenged. Additionally, it was noted that a simple proposal to address this issue by including an extra sub-section within s 29(2), stating that pro bono service in accordance with the LPC rules would qualify as community service was not accepted.
Cases considered
The Committee took note of the transfer of water use rights judgment in Lötter. The judgment looked at whether one can transfer water use rights and if so if one can charge a fee. This is something the Department used to allow but in 2018 the Department issued a circular, which said that s 25 does not allow trading in water use entitlements. The Constitutional Court (CC) held that one can transfer water use rights and the fact that one paid only a nominal amount to obtain them in the first place is irrelevant to the question of what someone can charge, for example, when surrendering your water use license in favour of a third party.
The court noted that one of the purposes of the National Water Act 36 of 1998 is to transform historical inequalities in water allocation but that cannot be done as the National Water Act is currently framed. Therefore, it is possible that amendments will be made to the National Water Act to address that concern.
The Committee also looked at South African Iron and Steel Institute, which challenged the enactment and coming into force of the National Environmental Management Laws Amendment Act 2 of 2022, which changed the definition of ‘waste’. The CC found that the public participation process in which the definition of ‘waste’ was changed was inadequate.
It was noted that leave to appeal to the Supreme Court of Appeal and the CC was refused in regard to the matter of Federation of South African Fly Fisheries, which determined the inadequacy of the sufficiency of information in a consultation process under s 100 of the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA). Furthermore, it was asked what considerations were applied in relation to the definition of ‘invasive’ in NEMBA.
Emergency cleanup and routine cleanup enactments
In light of the 2021 chemical spillage from a United Phosphorus Limited (UPL) chemical plant in Durban, the Committee considered emergency cleanup and routine cleanup enactments under ss 28 and 30 of National Environment Management Act 107 of 1998 (NEMA) and s 19 of the National Water Act and asked:
- What is an emergency incident?
- When does an emergency incident cease to be an emergency incident and become a long-term cleanup event?
- What are the overriding provisions?
- How do they work in practice within the different categories of emergencies?
In the event of such an occurrence, is our legislation explicit enough to give guidance to the authorities as to what legislation overrides the other legislation to the extent that it is needed for such an emergency, ensuring an appropriate response?
The Committee decided to have a future discussion in which they posit a simulated emergency scenario exercise, evaluating a reasonable response in accordance with overarching NEMA principles, to examine practically how municipal bylaws, provincial legislation, and national legislation intersect to handle disagreements over specific line functions or distinct competencies/jurisdictions, and to identify a swift method of resolving disputes to achieve effective mitigation/response/redress.
Legislative update and new law developments: Climate Change Bill B9 of 2022
On 24 October 2023, the Bill was passed by the National Assembly and sent to the National Council of Provinces (NCOP) for concurrence. Once it has been approved by the NCOP and signed by the President, South Africa will have its first Climate Change Act.
Media and communication
The Committee considered providing information to communities lacking proper consultation or a clear understanding of their environmental rights. This will involve delivering presentations and offering educational guidance on environmental law. This could take various forms, including brochures, webinars, or information sessions. The Committee will determine topics to provide broad and targeted environmental seminars. Participation will also be extended to other environmental practitioners interested in contributing. The initial presentation will focus on what is climate justice. The Committee noted that the most adverse impacts of climate change will disproportionately affect impoverished individuals who lack the means to alleviate those impacts.
Kevin O’Reilly MA (NMU) is a sub-editor at De Rebus.
This article was first published in De Rebus in 2023 (Dec) DR 6.
