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Upper Highway Air NPC v Enviroserve Waste Management (Pty) Ltd and others

21 June 2018

High Court of the Republic of South Africa, KwaZulu-Natal Division, Durban 

Case no. 3692/2017

Date: 21 June 2018

Judge: Ploos van Amstel J

This matter concerned an application for an interim interdict brought by Upper Highway Air NPC (Upper Highway Air) essentially restraining Enviroserve Waste Management (Pty) Ltd (Enviroserve) from conducting waste management activities on a landfill site in Shongweni save measures necessary to mitigate and remedy offensive odours and harmful gases emanating from the landfill site pending the outcome of litigation initiated by Upper Highway Air against Enviroserve.

The Court dismissed the application. It found that the matter should be left to be dealt with by the regulator, the Department of Environmental Affairs (DEA), and that intervention by the court was not necessary. In this matter, the DEA had already partially suspended Enviroserve’s waste management licence (which was issued to it in terms of the National Environmental Management: Waste Act, 2008) and the activities allowed by the DEA on the landfill site were intended to accelerate the remedial process. According to the Court, the assertion by Upper High Air that those activities are not likely to be effectual was not a basis for interdicting Enviroserve.

Despite the fact that Upper Highway Air was unsuccessful, and on the basis of section 32(2) of the National Environmental Management Act, 1998, the Court made no order as to costs.

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Section 24 of 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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