Kotzé, Louis J. --- "Judicial Enforcement of Liabilities and Responsibilities for Pollution Prevention and Remediation: No more ‘Business as Usual’ for South African Mines" [2011] ELECD 323; in Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood (eds), "Compliance and Enforcement in Environmental Law" (Edward Elgar Publishing, 2011)

Book Title: Compliance and Enforcement in Environmental Law

Editor(s): Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448315

Section: Chapter 19

Section Title: Judicial Enforcement of Liabilities and Responsibilities for Pollution Prevention and Remediation: No more ‘Business as Usual’ for South African Mines

Author(s): Kotzé, Louis J.

Number of pages: 26

Extract:

19. Judicial Enforcement of Liabilities and
Responsibilities for Pollution Prevention
and Remediation: No more "Business as
Usual" for South African Mines
Louis J. Kotze*

1. INTRODUCTION

Impacts on renewable and non-renewable resources are sometimes inevitable
because of development. l These impacts are particularly prevalent in highly
industrialised societies where unwanted by-products (waste) are produced and are
not properly managed or remediated, resulting in pollution? Unacceptable
environmental practices in the economic and mining sectors are prime examples of
where pollution depletes environmental resources. "Environmental governance," if
broadly interpreted, postulates a duty to avoid (by way of regulation or
governance) such unacceptable environmental practices. This duty arguably rests
on industry (private sector) which should comply with laws, and perhaps more
importantly, the state (public sector) which should enforce laws. 3 It is therefore the
executive, legislative and judicial arms of government that are tasked with the
responsibility of creating effective mechanisms that aid the enforcement and
compliance of environmental law .
Enforcement and compliance is usually done in terms of a fixed legal
framework which, in some instances, is based on a constitutional foundation.
The advent of democracy in South Africa has brought about the promulgation of
the Constitution of the Republic of South Africa Act, 1996 (Constitution), which
grants everyone in South Africa the right to an environment that is not harmful
to health or well-being. 4 In addition, the Constitution places an obligation on
the state to adopt legislative and other measures with a view to realising this
...