Statutory Remedies

The various laws listed above each provide legal remedies that are specific to the relevant laws. In order to use these remedies, you will need to determine which law applies to a person’s specific needs and, perhaps with the help of an attorney, decide how to use the specific law.

When trying to establish which law applies to your client’s query, you should ask the following questions:

• What do NEMA or any of the other framework environmental laws say?
  (See: Framework Environmental Laws)
• What sectoral laws might apply? For example, does the query relate to pollution and waste management, land-use planning and development, natural resources or workers’ environmental rights?

Once you have identified the applicable law you must decide what legal remedy you wish to pursue. The remedies that follow are useful in the protection of environmental rights.

The Interdict

The courts can be approached to interdict a person from performing a harmful action, without going through the process of claiming damages.
(See: Interdicts)

There are three basic requirements for granting an interdict:

• There must be an action which is already occurring or which is threatening (i.E. Is about to occur)
• The action must be wrongful – this also means that the person asking for the interdict must have a clear right that is in need of protection, and
• The person requesting the interdict must have no other remedy available to him

Obtaining and Interdict

Members of your community live near a saw mill, which prepares wood planks for sale to the building trade. Once the planks are made the remaining sawdust and wood chips are burnt. This results in huge clouds of smoke, which cause serious air pollution in the area. Children living near the saw mill have started to develop serious asthma symptoms, which the doctor says is caused by the pollution.

The saw mill is causing air pollution, which may be infringing the community’s (constitutional) right to an environment not harmful to their health or well-being. It is also likely that the requirements of a specific law such as the AQA are being violated. This factor would strengthen an application made to court for an interdict to prevent the pollution from continuing. It also appears that there is no other remedy available to the people living near the saw mill.

The community could bring an application for an interdict ordering the owners of the saw mill to stop the burning process.

Appeal and Review

Review: Review refers to the court’s ability to question whether the procedure followed by an organ of state, in making an administrative decision, was correct. You can approach the court to review an administrative decision when you feel that correct procedures have not been followed in making that decision. For example, a factory has been built without the people who live near the factory being given an opportunity to express their views on whether or not they want the factory to be built. Different laws set out different periods within which you must review a decision and you should abide by these time periods. You will need to consult with an attorney in order to apply for a review. It is important that the procedures set out in the PAJA are complied with. (See: What is a review?)

Appeal: Appeal is another way in which we can challenge the outcome of an administrative decision. While review limits us to testing whether the procedure that was followed in making an administrative decision was correctly followed, when you appeal against an administrative decision you are asking the court to look at the reasons for the decision. In other words, the court is asked to look at the information that was considered by the decision-maker in coming to the decision. You can appeal against the outcome of an administrative decision when you feel that the information available to the decision-maker should have resulted in a decision different from the one that was made. Different laws set out different periods within which you must appeal a decision and you should abide by these time periods. You will need to consult with an attorney in order to lodge an appeal.

(See: What is an appeal?)

Delictual Claim

You can bring a delictual claim when the actions of another person have caused harm to your property or yourself. The harm is represented as an amount of money which you claim from the wrongdoer to compensate you for the harm that you have suffered. You will need to consult with an attorney to bring a delictual claim before the court. (See: Law of Delict)