Are budget and procurement constraints enough to justify failure to comply? Quarter 3 2021

By MADODA KOTI, Published in Spotlight On Environmental Law

In the KwaZulu-Natal Division, a groundbreaking judgment was delivered in South African Human Rights versus Msunduzi Local Municipality and Others (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021), regarding compliance with a compliance notice (enforcement action) issued in terms of the National Environmental Management Act (107 of 1998) (NEMA).

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In summary, the court found that the Msundunzi Local Municipality (Municipality) breached the revised enforcement action, the variation of the waste management licence, s24 of the Constitution Act (108 of 1996), s20(b) of the National Environmental Management Waste Act (59 of 2008) (NEMWA); s31L(4) of the NEMA; s28(1) and (3) of the NEMA read with s19 of the National Water Act (36 of 1998) (NWA); and obligations imposed by the international environmental law treaty. Furthermore, the court ruling also encompassed a structural interdict in terms of which the Municipality was directed to file an action plan to address any non-compliances identified in the revised Compliance by no later than 17 July 2021, and that all parties should be entitled to comment on such an action plan 30 days thereafter. Finally, the first respondent was directed to file and serve on the other parties to the matter monthly reports indicating its progress with regard to the implementation of the action plan after its approval by second and third respondents.

Factual background

This matter concerned the New England Road Landfill Site, which is used for the disposal of general waste. It is the primary landfill disposal site of the municipality and was operated in terms of a then s20 ECA permit. By virtue of transitional arrangements set out in the NEMWA, the s20 ECA permit remained valid on promulgation of NEMWA on 1 July 2009. On 15 March 2015, the Department of Environmental Affairs undertook a comprehensive audit of the municipality's operations of the landfill site, and identified non-compliance pertaining to the management of the site. Consequently, the Department issued a warning letter to the municipality, drawing its attention to the areas of non-compliance identified in the report. A year later, the municipality applied for variation of the s20 ECA permit, to which the Department acceded on 3 July 2017, but most conditions of the s20 ECA permit were retained. The period from mid-2015 to mid-2017 was marked as an improvement in the management of the landfill site by the Municipality. However, a further audit was undertaken, and in the audit report generated, the Municipality was found not to have complied with a substantial number of conditions contained in the WML. Inevitably, this lead to several meetings between the officials and the Municipality, and a follow up inspection was undertaken on 13 December 2018. In the Department's view, these meetings were held in accordance with the principles of co-operative governance. However, a series of fires occurred at the landfill site, and as no significant corrective action was taken by the municipality, the Department of Environmental Affairs ultimately lost patience, and on 15 May 2019, issued the municipality with a Notice of Intention to Issue a Compliance Notice. The Municipality failed to respond, and although officials of the Department met with officials of the Municipality to elicit a response, none was forthcoming. Finally, a draft plan was furnished, but this was not effectively implemented by the municipality. The significant fire outbreaks persisted in the landfill site, and this ultimately led to the Department registering a criminal complaint against the Municipality.

As a consequence of the lack of action from the Department, aggrieved members of the community complained to the South African Human Rights Commission, which investigated the complaints. This ultimately led to the current legal proceedings. The Municipality's argument was that it had not breached s24 of the Constitution. Following an extensive analysis of s24, NEMA, NWA, NEMWA, and the international Conventions on waste management, the court dismissed the argument and granted an order in favour of the applicant. Furthermore, the Municipality's complaints about budgetary and procurement constraints were regarded as inadequate, as the courts have held that organs of states need to be exemplary in the manner with which they comply with their constitutional obligations. Finally, the contention by the Municipality that the South African Human Rights Commission should put forward scientific or medical evidence to establish unacceptable levels of pollution was regarded as a misconception.

Implications of the judgment

The first take home point is that other municipalities that are in the same situation as the Msunduzi Municipality are not immune from environmental legal risks, and should allocate enough budget to ensure compliance with enforcement actions.

Given the background of this matter, what is striking about the judgment is that the Municipality has been treated with kid gloves when it comes to compliance with an enforcement action, and that such treatment will not be applied to third parties. The Human Rights Commission used s32 of the NEMA, which allows for legal standing to enforce environmental law, and stepped into the shoes of concerned citizens in bringing the legal proceedings. The failure to comply with a Compliance Notice by third parties will result in the maximum sentences or fines imposed by the NEMA and related statutes, i.e. criminal prosecution, and private prosecution for transgression of the conditions of the enforcement action. What remains to be seen is what happens if the Municipality fails to comply with the court order issued on 17 June 2021.

Koti is a Senior Associate, Environmental and Mining Law, Gwina Attorneys.