Liability regimes for environmental damage in South African law

Abstract

This thesis investigates whether liability regimes for purposes of claiming for damage caused to the environment in South Africa are effective, and provides a general view of the relevant concepts, and identifies the challenges in succeeding in bringing a successful statutory or civil liability claim. It examines the current environmental legislative framework and identifies its inadequacy in facilitating common law compensation claims to remediate environmental damage, as well as to compensate victims who personally suffer loss, harm or damage caused by a polluter. This study evaluates the complications and possibility of success in enforcing these damage claims. The thesis commences with an overview of the definitions of what the concepts “environment”, “ecology” and “natural resources” mean. In this context, it aims to provide clarity on what damage to the environment, as a common good, entails. Thereafter the fundamental right of persons to the environment, for purposes of determining locus standi and the scope and merits of a liability claim are discussed. It is also evaluates and determines the importance of protecting the environment with specific reference to its impact on social and economic development, and the way in which liability regimes, by acting as a deterrent, can further this aim. . The current legislative framework in South Africa lacks comprehensive liability rules to allow for a claim for damages to be lodged directly by an individual against the polluter. As stated an effective liability regime also acts as a deterrent to combat the problem of environmental damage, and could be facilitated in improved environmental governance structures. The possibility of taking successful recourse by ways of a civil delictual liability claim is critically discussed to determine whether the current flexible principles of delict can be applied effectively in cases where environmental damage claims are instituted. Criminal liability forms only a limited part of the study as utilising criminal law principles can merely serve as deterrent for environmental crimes in South Africa, yet does not provide compensation as reparation. The issue of the economic consequences relating to the various environmental liability regimes is also included in the study. Sound environmental liability regimes can serve the purpose of attracting and encouraging foreign direct investment, which is critical for economic and social development. The study further contains a brief capita selecta from the laws of other countries in order to tap from the experience of the other jurisdictions that have developed legal regimes for environmental governance. It aims to provide justifiable recommendations for future developments in this area of South Africa’s national laws.