ENVIRONMENT IN FOCUS
Understanding and complying with
environmental legislation
Environmental legislation should be respected and complied with, write Alan Cluett and Colleen Cluett.
34 _ QUARRY SA | MAY/JUNE 2018
E
nvironmental legislation in
South Africa serves a critical
function: to protect the health
and well-being of all of us, the
current population, future generations
and the environment. Therefore, it
should be respected and willingly
complied with. However, it is often
seen as adversarial and is begrudgingly
complied with.
Part of this attitude may stem
from its complexity and the speed of
development of new requirements
within this branch of legislation.
New draft legislation is issued for
comment and / or promulgated
frequently, making it very difficult
for surface mine managers, by
themselves, to keep abreast of new
requirements, let alone to be able to
confirm their compliance with the
numerous requirements.
In addition, environmental
management, as a relatively new field,
may be seen as supplementary to our
actions and responsibilities rather than
something that should be fundamental
to our thinking and actions, both at
work and at home.
In comparison to other legislation,
consequences for non-compliance
with environmental requirements
is significantly more severe,
possibly to encourage action where
understanding of the reason for
implementation is limited.
This is especially true in comparison
with the penalties for mining-related
health and safety, with which most
managers are more familiar. However,
both environmental and mining
health and safety legislation follow the
same principles in the event of non-
compliance, namely, the same hierarchy
of people who will be tested for individual
accountability and for prosecution and
conviction. Both will commence directly
or indirectly with the CEO and senior
Alan Cluett
management and, possibly, end with the actual
responsible individual.
Management tested
If the CEO has fulfilled their respective duties
in this regard, then responsibility will fall
on the next identified level - the ‘person in
control of the land’, typically the appointed
site manager. Again, if they have fulfilled their
role then the responsibility will rest with the
individual/s directly and indirectly responsible
for the non-compliance. Needless to say, that
where duties have not been fully executed or
the law complied with at any level mentioned
above, this may result in joint convictions.
This hierarchy of responsible people is not
a new development in our legal system but
closely follows the responsibility hierarchy set
out in the Mine Health and Safety Act, namely
the Section 2, the Section 3.1a and 7 and the
Section 22a and 22b – the CEO, the person
in control of the land and the individual
employee respectively.
An additional difference in environmental
legislation is the severity of the penalties that
Colleen Cluett
can be applied by the courts in the event
of a conviction. Under the Mine Health
and Safety Act, 1996, these penalties range
from R200 000 or two years for a Section 22
conviction through to R1-million or five years
imprisonment for a Section 2, Section 3.1a and
Section 7 conviction. It is possible that, where
a manager is charged on more than one count,
in terms of the MHS Act, for the maximum
penalty, if convicted, to exceed R2.2-million.
In comparison the penalties prescribed in
the various branches of environmental law
range up to R10-million, imprisonment for
10 years (15 years in terms of GN 528 of the
NEM:Waste Act, 2008) or a combination of
a fine and imprisonment. In addition, in all
cases where pollution or degradation has
occurred, those found guilty in a Court of
Law will also be held accountable for the
restoration costs for areas affected.
The question then becomes, “How do I get
to know the applicable law, so I can protect
myself?” Well the answer, we believe, is
relatively simple despite the complexity of
environmental law.