ENVIRONMENT IN FOCUS
Ignorance a great risk
Environmental law is diverse, dynamic and
contained in numerous Acts of Parliament,
Government Notices and Regulations,
Provincial Ordinances and Local Authority
By-laws. To master this field may take years
of university study. However, the common
purpose of this law is relatively simple – to
support our Section 24 Constitutional Right
to an environment that is not detrimental
to our health and wellbeing. Therefore, if
one acts to protect our environment (air,
water, soil, plants, animals and us) from
pollution and degradation or, where that
is not possible, to reduce our impacts as
far as reasonably practicable then, in most
cases, we will remain compliant. This not
only protects us from prosecution, but also
protects the health and well-being of us, the
current generation, and future generations.
This then becomes common sense.
If, as a nation we could apply this
common sense in our day-to-day activities
whether at the mine, at home, at leisure
or at a sports stadium, there would be no
need for the ever-expanding catalogue of
environmental law in South Africa.
However, as there is environmental law in
place here are two basic principles of South
African environmental law to remember
1. The identified responsible
person is held accountable
South African law is based on a
hybrid system of Roman-Dutch and
English Law. In Roman-Dutch law
the responsible person is held directly
accountable for their actions. This
can be seen in all our legislation that
specifically names ‘the owner’; ‘the
person in control of the land’; and
/ or ‘the individual directly and / or
indirectly responsible’ to account. The
hybridisation of Roman-Dutch Law
with ‘English Law’, peculiar to many
Southern African states, allows for
the Judges to test for reasonableness
in the actions of the people appearing
before them. Essentially, to ask ‘did the
accused take reasonable precautions
to prevent the non-compliance /
polluting event from taking place?’.
This is the so called ‘reasonable
person test’. If yes, then the Judge
may apply leniency to the prescribed
penalty – resulting in a reduced or
even suspended sentence. If no, then
the Judge will apply an appropriate
sentence that may be relative to your
income and / or past convictions.
Remember the ‘reasonable person test’
and test all your actions against it.
2. Penalties are severe
The National Water Act (36 of 1998),
National Environmental Management
Act (107 of 1998), NEM: Air Quality
Act (39 of 2004), NEM: Waste Act (59
of 2008); NEM: Biodiversity Act (10 of
2004) and some associated regulations
all make provision for fines up to R10-
million and / or imprisonment of up
to 10 years plus clean-up (restoration).
In instances, a responsible individual
may be found guilty on more than
one count, from one or more of these
Acts. In such cases, it is quite possible
for collective penalties to exceed a
total of R30-million and / or 30 years
imprisonment.
Penalties can be remembered simply as
‘Ten-Ten Plus’ – ten million, ten years
PLUS restoration.
3. Environmental law is there to
protect all of us
All environmental law serves to give
effect to our Basic Human Right
contained in Section 24: to protect our
health and well-being. This includes
our ability to have our air cleaned
(trees), our water purified (wetlands),
our food provided (pollination by
bees and birds). This law has not been
created to make our lives more difficult
or to develop unnecessary hoops to
jump through. We encourage you
to learn about these benefits and to
embrace compliance and continual
improvement in your environmental
management and performance.
4. Environmental law is your ally,
not your adversary
How best can you reduce your impact
on the environment, comply with
environmental legislation and protect
yourself and your employees from
possible prosecution?
Aside from applying common sense,
your best route to protection is through
the implementation of effective
environmental and health and safety
management systems.
ISO based environmental and health
and safety management systems are
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specifically designed to assist all levels
of management and employees in:
identifying the context of the
organisation and identifying and
understanding their responsibilities in
terms of company policy and the law;
assessing and prioritising their risks
and opportunities;
developing plans and programmes to
achieve compliance with policy and
the law and manage their risks and
opportunities;
identifying required activities
including employee training needs,
communication requirements and
setting objectives;
monitoring and reporting on impacts;
and
reviewing and improving activities and
impacts.
Additional note
In our role as ASPASA About Face
Environmental Auditors for the past six years
Cluett Consulting (Pty) Ltd have audited
more than 400 member operations. We have
identified weaknesses on an annual basis
and addressed these through introduction
of remedial actions in the next generation
or audits and training. Through these
interventions ASPASA About Face is at the
leading edge of environmental management
in surface mining in southern Africa and
possibly the world. The 2018 programme
includes a formal training session for
Management, HODs, SHE Reps and Shop
Stewards on environmental legislation.
Additional training presented covers the
EMP, PCBs and on-site Soil Remediation
and Best and Bad Practice at South
African Surface Mines. These audits are
not just about identifying shortcomings
environmentally – they are about assisting
you and your operation in the goal of
continual performance improvement.
For more information on membership
and ASPASA programmes, contact:
[email protected] or [email protected] or
[email protected]. ■
ABOUT THE AUTHORS
Cluett Consulting offers services
specialist environmental and mining-
related services to the industry. Alan
and Colleen Cluett have a combined
experience in the surface mining
industry of more than 40 years. For more
information, visit: www.cluett.co.za.
QUARRY SA | MAY/JUNE 2018 _ 35