September 2020


Introduction - Feature September 2020 Environmental Law Feature September 2020

The environment, its beauty and what it provides for us, is generally taken for granted. As with much in life, it is only when it is no longer there, or is in danger, that we take the issue seriously. Sometimes that is too little, too late.

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GREATER RESPONSIBILITY FOR PRODUCERS OF LIGHTING, ELECTRONIC, PAPER AND PACKAGING PRODUCTS Environmental Law Feature September 2020

It is estimated that South Africa generates approximately 108 million tonnes of waste per year. As much as 90% of this waste (with an estimated value of more than R25.2 billion) is dumped or disposed of in landfill sites across the country. These are rapidly filling up and approaching closure.

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ENVIRONMENTAL REGULATORY SUPPORT – KEY TO SUSTAINING INVESTOR CONFIDENCE UNDER SOUTH AFRICA’S ENERGY TRANSITION Environmental Law Feature September 2020

Investment within the energy sector is becoming increasingly, if not predominantly, driven by climate change considerations and other ESG risks. The Principles for Responsible Investment (PRI), which is supported by the United Nations, has become a guiding instrument for the financial sector in its move towards a more sustainable and responsible global market. Locally, the PRI has been incorporated into the Code for Responsible Investing in South Africa, which has been endorsed by the Institute of Directors in Southern Africa, and supported by the Financial Services Conduct Authority and Johannesburg Stock Exchange.

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REFLECTIONS ON ENVIRONMENTAL LAW PRACTICE IN SOUTH AFRICA Environmental Law Feature September 2020

Bright-eyed young people often ask me for advice about how to get into a field which they feel confident is growing as rapidly as the huge environmental challenges facing humanity in the 21st century. Many scientists now regard the collapse of human civilisations as the most likely outcome of the combined effects of climate change, ecological degradation and the catastrophic decline in wild species. This means that, from the macro-perspective of humanity, the need to develop, apply and enforce environmental laws in defence of Earth has never been greater. Unfortunately, from the micro-perspective of the individual lawyer, it remains difficult to find a job or build a practice in the field of environmental law. The most lucrative career opportunities are advising corporations that cause significant environmental degradation, but even so, environmental law departments within large firms are often "Cinderella departments" because it is much easier to be a big-biller in other fields of law.

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DOES SECTION 34 OF NEMA APPLY TO ECA TRANSGRESSIONS? Environmental Law Feature September 2020

In the May 2019 and June 2019 editions of without prejudice, the authors of this article wrote two articles, Private prosecution for environmental crimes and Misconception on section 24G, pertaining to the Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd (CC82/2017) [2019] ZAGPPHC 86 (1 April 2019) case. In this high court case, Judge Spilg delivered a groundbreaking judgment and held that Uzani Environmental Advocacy CC was entitled to privately prosecute BP Southern Africa for transgression of the provisions of the then Environmental Conservation Act (73 of 1989) (ECA) which were repealed and replaced by the National Environmental Management Act (107 of 1998) (NEMA). Furthermore, the court held that Uzani had proved beyond reasonable doubt that BP should be convicted of environmental crimes committed in terms of the ECA, even though BP successfully rectified the illegal activities in terms of section 24G of NEMA. Since the writing of these articles, there has been a significant development in this case.

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IMPACTS OF PLASTIC POLLUTION ON OUR MARINE ECONOMY AND ENVIRONMENT Environmental Law Feature September 2020

South Africa's marine environment extends along more than 3 000 km of coastline and is rich in biodiversity, with over 10 000 recorded marine plant and animal species. Hake, anchovy, tuna, snoek, rock lobster and abalone are commercially exploited along our west coast, and squid, line fish and a wide range of intertidal resources on our east coast, providing an important food source and livelihood for many coastal communities. Our marine life also supports a number of recreational and tourism activities, including recreational fishing, aquaculture, scuba diving, whale watching and sharkdiving.

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THE WAKE EFFECT Environmental Law Feature September 2020

With rolling blackouts and load shedding schedules becoming a permanent feature in the lives of South Africans, it is clear that we are in dire need of a substantial increase in energy generated from sources other than coal. One such alternative source is that of wind energy. The harnessing of the wind's energy to generate electricity is a relatively new form of power generation in South Africa. Currently there are approximately 24 separate wind energy facilities, which have a total of 2 078MW of wind generation.

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IWUL OR WUL – THAT IS THE QUESTION Environmental Law Feature September 2020

In terms of the one environmental system (OES), the respective Ministers responsible for Environmental Affairs, Mineral Resources and Water Affairs agreed that the Minister responsible for Mineral Resources would issue environmental authorisations and waste management licences in terms of the National Environmental Management Act, 1998 (NEMA) and the National Environmental Management: Waste Act, 2008, respectively, for mining and related activities, and that the Minister responsible for Environmental Affairs would be the appeal authority for these authorisations.

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