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National Environmental Management Act, 1998 (Act No. 107 of 1998)

Chapter 7 : Compliance, Enforcement and Protection

Part 1 : Environmental Hazards, access to information and protection of whistleblowers

28. Duty of Care and Remediation of Environmental Damage

 

(1) Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.

 

(1A) Subsection (1) also applies to a significant pollution or degradation that—
(a) occurred before the commencement of this Act;
(b) arises or is likely to arise at a different time from the actual activity that caused the contamination; or
(c) arises through an act or activity of a person that results in a change to pre-existing contamination.

 

(2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, include an owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which—
(a) any activity or process is or was performed or undertaken; or
(b) any other situation exists,

which causes, has caused or is likely to cause significant pollution or degradation of the environment.

 

(3) The measures required in terms of subsection (1) may include measures to—
(a) investigate, assess and evaluate the impact on the environment;
(b) inform and educate employees about the environmental risks of their work and the manner in which their tasks must be performed in order to avoid causing significant pollution or degradation of the environment;
(c) cease, modify or control any act, activity or process causing the pollution or degradation;
(d) contain or prevent the movement of pollutants or the causant of degradation;
(e) eliminate any source of the pollution or degradation; or
(f) remedy the effects of the pollution or degradation.

 

(4) The Director-General, the Director-General of the department responsible for mineral resources or a provincial head of department may, after having given adequate opportunity to affected persons to inform him or her of their relevant interests, direct any person who is causing, has caused or may cause significant pollution or degradation of the environment to—
(a) cease any activity, operation or undertaking;
(b) investigate, evaluate and assess the impact of specific activities and report thereon;
(c) commence taking specific measures before a given date;
(d) diligently continue with those measures; and
(e) complete those measures before a specified reasonable date:

Provided that the Director-General or a provincial head of department may, if urgent action is necessary for the protection of the environment, issue such directive, and consult and give such opportunity to inform as soon thereafter as is reasonable.

[Section 28(4) amended by section 10(a) of Act No. 25 of 2014]

 

(5) The Director-General, the Director-General of the department responsible for mineral resources or a provincial head of department, when considering any measure or time period envisaged in subsection (4), must have regard to the following:
(a) the principles set out in section 2;
(b) the provisions of any adopted environmental management plan or environmental implementation plan;
(c) the severity of any impact on the environment and the costs of the measures being considered;
(d) any measures proposed by the person on whom measures are to be imposed;
(e) the desirability of the State fulfilling its role as custodian holding the environment in public trust for the people; and

[Section 28(5)(e) amended by section 12(b) of Act No. 30 of 2013]

(f) any other relevant factors.

[Section 28(5) amended by section 10(b) of Act No. 25 of 2014]

 

(6) If a person required under this Act to undertake rehabilitation or other remedial work on the land of another, reasonably requires access to, use of or a limitation on use of that land in order to effect rehabilitation or remedial work, but is unable to acquire it on reasonable terms, the Minister may—
(a) expropriate the necessary rights in respect of that land for the benefit of the person undertaking the rehabilitation or remedial work, who will then be vested with the expropriated rights; and
(b) recover from the person for whose benefit the expropriation was effected all costs incurred.

 

(7) Should a person fail to comply, or inadequately comply, with a directive under subsection (4), the Director-General or a provincial head of department may take reasonable measures to remedy the situation or apply to a competent court for appropriate relief.

[Section 28(7) amended by section 12(c) of Act No. 30 of 2013]

 

(8) Subject to subsection (9), the Director-General, the Director-General of the department responsible for mineral resources or provincial head of department may recover costs for reasonable remedial measures to be undertaken under subsection (7), before such measures are taken and all costs incurred as a result of acting under subsection (7), from any or all of the following persons—
(a) any person who is or was responsible for, or who directly or indirectly contributed to, the pollution or degradation or the potential pollution or degradation;
(b) the owner of the land at the time when the pollution or degradation or the potential for pollution or degradation occurred, or that owner's successor in title;
(c) the person in control of the land or any person who has or had a right to use the land at the time when—
(i) the activity or the process is or was performed or undertaken; or
(ii) the situation came about; or
(d) any person who negligently failed to prevent—
(i) the activity or the process being performed or undertaken; or
(ii) the situation from coming about:

Provided that such person failed to take the measures required of him or her under subsection (1).

[Section 28(8) amended by section 10(c) of Act No. 25 of 2014]

 

(9) The Director-General, the Director-General of the department responsible for mineral resources or provincial head of department may in respect of the recovery of costs under subsection (8), claim proportionally from any other person who benefited from the measures undertaken under subsection (7).

[Section 28(9) amended by section 10(d) of Act No. 25 of 2014]

 

(10) The costs claimed under subsections (6), (8) and (9) must be reasonable and may include, without being limited to, labour, administrative and overhead costs.

 

(11) If more than one person is liable under subsection (8), the liability must be apportioned among the persons concerned according to the degree to which each was responsible for the harm to the environment resulting from their respective failures to take the measures required under subsections (1) and (4).

 

(12) Any person may, after giving the Director-General, the Director-General of the department responsible for mineral resources or provincial head of department 30 days' notice, apply to a competent court for an order directing the Director-General, the Director-General of the department responsible for mineral resources or any provincial head of department to take any of the steps listed in subsection (4) if the Director-General, the Director-General of the department responsible for mineral resources or provincial head of department fails to inform such person in writing that he or she has directed a person contemplated in subsection (8) to take one of those steps, and the provisions of section 32(2) and (3) shall apply to such proceedings, with the necessary changes.

[Section 28(12) amended by section 10(d) of Act No. 25 of 2014]

 

(13) When considering any application in terms of subsection (12), the court must take into account the factors set out in subsection (5).

 

(14) [Section 28(14) deleted by section 12(d) of Act No. 30 of 2013]

 

(15) [Section 28(15) deleted by section 12(d) of Act No. 30 of 2013]