Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg is available here.

Coram: Seegobin J

Heard: 26 May 2021

Judgment delivered: 17 June 2021

Outcome: Declaratory order and structural interdict granted against the Msunduzi Municipality with directions relating to the management of the New England Road Landfill site in Pietermatitzburg. The Municipality was found to have breached the the Constitutional right to a healthy environment.

Summary:

In this matter, the South African Human Rights Commission successfully applied to the High Court for a declaratory order and structural interdict against the Msunduzi Municipality in order to bring the Municipality into compliance with its constitutional obligations relating to a landfill site under its management.

The Municipality had a long history of non-compliance with its duties under NEMA, the National water Act, the Waste Act and its Waste Management Licence (WML). The National Department of Environmental Affairs had conducted audits on the site, and together with the MEC, engaged extensively with the Municipality in order to improve its management of the landfill.  The engagements culminated in the Department issuing a compliance notice in 2019. The situated deteriorated further with many uncontrolled fires on the landfill site – several of which resulted in the surrounding air quality being so hazardous that schools and highways in the vicinity were closed. The Department laid criminal charges against the Municipality regarding its failure to comply with its environmental duties on the site. Further compliance notices were issued by the Department to which the Municipality failed to respond adequately.

After investigating these non-compliances, the SAHRC applied to the High Court as a matter of urgency seeking a declaratory order as well as a structural interdict directing the Municipality to take detailed actions regarding the management of the landfill.

The Municipality argued that it faces huge budgetary and procurement challenges in its management and operation of the landfill site. It did not oppose the interdict but argued that it had not breached the Constitutional right to an environment that is not harmful to health or wellbeing.

The court found that, in addition to failing to comply with the conditions in its WML, the Municipality was in breach of:

• Section 24 of the Constitution of the Republic of South Africa, 1996;
• Section 20(b) of the National Environmental Management: Waste Act 59 of 2008;
• Section 31L(4) of the National Environmental Management Act 107 of 1998;
• Section 28(1) and (3) of the National Environmental Management Act 107 of 1998;
• Section 19(1) of the National Water Act 36 of 1998; and
• Its obligations in terms of international law.

Under the structural interdict, the court ordered that within a month of its order, the Municipality must file an Action Plan with the court, which must substantially comply with terms detailed in the order.