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Chief Pule Shadrack VII Bareki NO and Another v Gencor Limited and Others 2006 (8) BCLR 920 (T)

23 August 2010

Court: South Gauteng High Court
Case Number or Citation: 19895/2003
Date of judgement: 19 October 2005 Judge/s: De Villiers, J.
Type of application: Action to order environmental rehabilitation.
Legislation considered: National Environmental Management Act 107 of 1998.

Download a copy of the judgment in Word here

Summary:

The applicants had brought an application against the respondents for an order requiring reasonable measures to rectify pollution and degradation of the environment, including the release of asbestos, caused by mining activities between 1976 and 1981.  The applicants had framed their application in terms of section 28(1) of the National Environmental management Act 107 of 1998 (NEMA) which requires such reasonable measures to be taken.  They argued that the mining companies, Gencor and GEFCO remained responsible to take such steps despite the fact that NEMA only commenced in 1999, after the pollution and degradation had been caused. In respect of the Government it was argued that the Government was the owner of the land and that under s28, it was also obligated to take reasonable measures to rectify the pollution and degradation which it had failed to do. On exception the respondents had brought the present matter claiming that NEMA did not apply because it was enacted in 1999 and did not apply retrospectively to pollution caused before its enactment.  The Court held in favour of the respondents and found that sections 28(1, (2) and (3) were not retrospective. The exception to the particulars of claim was accordingly upheld.

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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