There are various remedies to environmental problems that are available through the legal system. However, using the courts to solve an environmental problem can be very expensive because of the legal fees involved. For this reason, going to court should be seen as the last resort in solving a problem. Other ‘non-legal’ methods should first be explored.

LEGAL STANDING TO BRING A MATTER BEFORE THE COURT

The law requires that a person have some personal interest in a matter to bring that matter before the court. This rule (called the requirement of locus standi) has sometimes prevented people wanting to raise an environmental issue, from approaching the courts because it was found that they did not have sufficient personal interest in the matter. However, the Constitution has broadened the requirement of locus standi and states that in addition to people acting in their own interest, the following people may approach a court in connection with the infringement of a person’s rights:

• Anyone acting on behalf of another person who cannot act in their own name
• Anyone acting as a member of, or in the interest of, a group or class of persons
• Anyone acting in the public interest
• An association acting in the interests of its members

Therefore, individuals and non-governmental organisations (NGOs) are allowed to take action to protect the environment in the public interest. One person from the group can represent the interests of the whole group. If the group does not have sufficient funds to pay the legal costs, it could approach an NGO to bring the relevant action.

NEMA also states that a person may approach the court for relief in the case of a breach, or threatened breach, of NEMA or any other environmental law if it is:

• In that person’s or group of persons’ own interest
• In the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings
• In the interest of or on behalf of a group or class of persons whose interests are affected
• In the public interest and
• In the interest of protecting the environment

NEMA also contains provisions relating to the legal costs associated with taking a matter to court. It states that if a person brings a matter to court in the environmental or public interest and is not successful if certain requirements are met, the court may decide not to order that person to pay the costs of the successful party. In addition, if the relevant person is successful, the court may decide (on application by the relevant person) to grant them certain additional legal costs to which they would not ordinarily have been entitled. These provisions should assist people who wish to bring matters to court in the environmental or public interest.

TYPES OF LEGAL REMEDIES

STATUTORY REMEDIES

The various laws listed above each provide legal remedies that are specific to the relevant laws. 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 that 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 requires protection, and
• The person requesting the interdict must have no other remedy available to him

EXAMPLE – OBTAINING AN INTERDICT

Members of your community live near a sawmill, 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 sawmill have started to develop serious asthma symptoms, which the doctor says is caused by the pollution.

The sawmill 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 sawmill.

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

APPEAL AND REVIEW

Review – This 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 frames. You will need to consult with an attorney to apply for a review. The procedures set out in the PAJA must be complied with. (See What is a review?)

Appeal – This is another way to challenge the outcome of an administrative decision. While review limits you to test whether the procedure 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 frames. You will need to consult with an attorney 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 that 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)