Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment is available here

• Court: High Court of South Africa, Eastern Cape Division
• Case Number: 1050/2001
• Date of judgement: 22 November 2001
• Judge: Leach J.
• Legislation considered:
  • Atmospheric Pollution Prevention Act 45 of 1965;
  • National Environmental Management Act 107 of 1998;
  • Constitution Act 108 of 1996.

The applicant alleged that noxious gases created by a neighbouring tannery were discharged into the atmosphere, causing a foul and offensive odour and the rapid and uncontrollable corrosion of metal structures and equipment on its property, and that such gases were prejudicial to the health and well-being of those present on its premises and other inhabitants of Port Elizabeth.

The applicant claimed that the second respondent (the Director General: Environment Affairs and Tourism), the third respondent (the Chief Air Pollution Control Officer), the fourth respondent (the head of the Department of Economic Affairs and Tourism, Eastern Cape) and the fifth respondent (the municipal manager of the Nelson Mandela Metropolitan Municipality) had failed, neglected or refused to take reasonable steps to bring the pollution to an end.

The court considered the nature of the Duty of Care contained in Section 28 of NEMA and agreed that this duty had been breached by the tannery. The emission of the noxious fumes also constituted a breach of the Constitutional right to an environment that is not harmful to one’s health or well-being.

Judge Leach held that “One should not be obliged to work in an environment of stench and, in my view, to be in an environment contaminated by Hydrogen Sulfide is adverse to one’s “well-being”. I am therefore satisfied that the activities of the first respondent have caused “pollution” as defined in NEMA.”