Fuel Dealers Association of Southern Africa v Director General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and others (2007 (6) SA 4 (CC). Tourism (1996) 3 All SA 462 ( Tk).
INTRODUCTION
BACKGROUND OF THE STUDY
However, innovations that can lead to environmental protection cannot be effective without adequate redress being granted by the courts when they are approached. The courts have continually applied remedies designed to address private litigation grievances to public interest litigation matters, with few of the requirements tailored to meet the needs of the various litigants.
OBJECTIVE OF THE STUDY
RESEARCH QUESTION(S)
ASSUMPTIONS UNDERLYING THE STUDY
It is argued that this remedy has the effect of protecting the environment before damage occurs. Therefore, it is crucial that the court grants the interdict remedy to both the state and the citizens who are ready to take on the task of protecting the environment, as envisaged by the constitution.
RESEARCH METHODOLOGY
OVERVIEW OF CHAPTERS
INTRODUCTION
PUBLIC INTEREST ENVIRONMENTAL LITIGATION
32 M Galanter „The Radiation Effects of the Courts‟ in Boyum KO and L Mather (eds) Empirical Theories about Courts (1983) 117. Lobel notes that the success of PIEL is seen not in the manner of the relief provided but in the contribution such relief would make to society's livelihood.40 The contribution that PIEL makes is crucial to increasing the low environmental awareness among the South African population.
PUBLIC INTEREST ENVIRONMENTAL LITIGATION UNDER COMMON
60 An important court decision involving a public interest litigation at common law was that given in the case of Bamford v Minister of Community Development and State Auxiliary Services. 61 The importance of this case arises from the effect of the judgment passed by the court, a judgment upholding a right of public interest. The court did not accept that the public interest plaintiffs were entitled to represent its members unless it was able to show that interests separate from those of its members had been infringed.
PUBLIC INTEREST ENVIRONMENTAL LITIGATION UNDER THE
While it is recognized that the public and private sector's cooperation in the enforcement of environmental law is essential, the challenges the public faces with access to court are further addressed in section 38 of the Constitution. In accordance with the exempted locus standi provisions and giving effect to environmental law in the Constitution is section 32 of NEMA. Public interest litigants effectively have the option of establishing deference to the Constitution and WNOB on grounds of public interest, and more importantly in the interest of protecting the environment under WNOB.
PUBLIC INTEREST ENVIRONMENTAL LITIGATION AND REMEDIES
The main issue for public interest litigation in South Africa is now more along the lines of the remedies that a court awards in a public interest case that seeks to protect the environment for the public, or the interests of environmentalists. The diversity of private and public interest disputes was recognized by O'Regan in Ferreira v Levin NO.75. The judge pronounced it. The standing provisions enumerated in Section 38 of the Constitution and Section 32 of NEMA must be given effective meaning and not just by giving public interest litigation access to the courts but by providing effective remedies.
CONCLUSION
As a result, the court may need to take other steps, which in this case include an expanded interpretation of the requirements of the common law interdict, as will become more apparent from the discussion below.
INTRODUCTION
THE NATURE AND IMPORTANCE OF AN INTERDICT IN
The application of the interdict remedy, in an effort to protect the environment, has been recognized in other jurisdictions, such as Canada. The subject matter of the lawsuit will be destroyed before the rights are decided. That's the kind of outcome the courts have tried to prevent by issuing injunctions.
TYPES OF INTERDICTS
Prohibitory interdict
The defendant violated the provisions of the Atmospheric Pollution Prevention Act90 and the Land Use and Planning Ordinance.91 These laws regulated the emission of harmful and/or objectionable gases into the atmosphere in an attempt to implement the environmental law guaranteed in the Constitution.92 The respondent's defense against the court that issued the interdict was that, since the law provided for criminal sanctions, there was an alternative remedy to that sought by the respondents; and thus the petitioner's plea should have been dismissed. However, the court disagreed with this assertion, stating that imposing criminal sanctions for violating APPA provisions would sometimes be woefully inadequate.93 Criminal sanctions in the environmental context are of little use in regulating anticipated future violations of the environment, and this had an influence on the judge's decision.94 The judge came to the conclusion that under such circumstances there is no other suitable or alternative solution in the hands of the victim, except an injunction against the violator of the environmental law to prevent pollution.95. The importance of seeking an injunction is also recognized, even by government departments, as evidenced by the case of Minister of Health and Welfare v Woodcarb.96 This case concerned a request by the Minister to impose an injunction against a sawmill manufacturer operating in breach of the Atmospheric Pollution Prevention Act.97 Hurt J stated that, as the Act did not provide for specific remedies, the Minister or other interested parties could take action against a party in breach of the Act and could not be limited become.
Mandatory interdict
Although the Wildlife Society case was decided under the now repealed section of the Environmental Protection Act108, this decision has implications for the application of other applicable laws. In a recent case of Kloof Conservancy v Government of the Republic of South Africa and Others111 the Court was faced with a similar case where a mandamus was sought by public interest litigation against the Government. The government, through the various departments, had failed to publish and use a list of alien invasive species as mandated in Chapter 5 of the National Environmental Biodiversity Act (NEMBA).
THE INTERDICT REQUIREMENTS
Clear right
Courts recognized the petitioner's clear right to a healthy environment within the petitioner's immediate vicinity only by virtue of reliance on neighborhood law. Public interest litigants would also find it difficult to enforce public-centered legislation since the clear right to enforce such statutes is, according to the court, a state responsibility. Interpreting the clear claim of the right on this basis preserves a counterproductive pre-constitutional mentality.
Injury actually committed or reasonably apprehended
The applicant's basis for seeking an injunction was that the disposal of waste constituted a nuisance. The court in Laskey and Another v Showzone CC and Others,164 decided after the advent of the Constitution, to follow the trend established in Patz. Freedman, in relation to the Showzone case, was disappointed that the courts used common law rules which effectively did this.
No alternative remedy
It would be very difficult, given the nature of environmental statutes, for PIEL to show the existence of a claim for injury or damage in order to be granted an injunction. 177 J Barboza „ILC and environmental damage‟ in P Wetterstein (ed) Environmental Damage: The Right to Compensation and Assessment of Damages P Wetterstein Environmental Damage: The Right to Compensation and Assessment of Damages (1997) and EHP Brans Liability for Damage of Public Natural Resources: Assessing Condition, Impairment and Damage (2001). 178 M Kidd Environmental protection through the use of criminal sanctions: A comparative analysis with specific reference to South Africa (Unpublished PhD thesis, University of Natal, 2002); M Kidd.
CONCLUSION
The remedy of an interdict is a more appropriate means of fulfilling the parties' objective in the public interest. The environment and "ecosystems are generally irreplaceable"183 and an interdict may be the only remedy a court can grant to prevent damage before it occurs. All three requirements must be initially met before an injunctive remedy can be granted.
INTRODUCTION
Establishing a clear right
Alleging that one of the fundamental rights in the Bill of Rights has been violated or threatened: and. Protection of the environment by public interest plaintiffs cannot be attributed only to health reasons, as others feel a moral responsibility and a desire to protect the environment. The courts' approach to public interest disputes that meet this requirement is the focus of the next discussion.
Injury requirement
Another challenge that needs to be addressed is the second requirement for an injunction, and this relates to an injury actually committed. Furthermore, the continued strict application of the "rule" in Patz218 in today's constitutional era is misguided, as it was introduced to address circumstances where public interest litigation was not tolerated.219 The Constitution has now clarified the position of public interest litigants. in section 38, and the continued application of the Patz principle220 is unjustified as it now lacks relevance.221 The implication of the courts' removal of the Patz "rule" is that in environmental statutes enacted for the public benefit, the requirement of a showing of harm special would not be necessary. Public interest litigants seeking to enforce environmental statutes will only need to show that they are suffering damages as a result of the violation of their clear environmental right.
DEVELOPMENT OF THE COMMON LAW
The general inability of the courts to accept the need for a broad interpretation of the prohibition requirements in the manner discussed would necessarily mean that the first test of the Hichange case is met.224 The common law remedy in that case would be granted. insufficient to meet PIEL's needs. The common law interdict remedy, as it was applied prior to the enactment of the Constitution, requires developments, including the way in which legal practitioners submit their positions to the court in environmental cases. The starting point for the development of the common law is section 8(3) of the Constitution, which specifically applies where a provision of the Bill of Rights has been breached.
THE MEANING OF APPROPRIATE RELIEF
Must our law be so rigid and our procedural concepts so inflexible that we become powerless when existing methods and traditional concepts do not quite fit and do not prove quite adequate to new questions. Section 8(3) enjoins the courts to develop the common law to the extent that the legislation does not enforce that right when necessary.225 The role of the courts in this area is crucial: they must remain vigilant in ensuring that the common law is developed so , to reflect and 'promote the spirit, meaning and objectives of the Bills of Rights'.226 The judiciary should assist public interest parties in their efforts to enforce environmental law through the development of common law, as discussed below. The reliefs granted by the court ultimately affect how parties respect constitutional rights and deter future violations. 234.
COURTS’ APPROACH TO APPROPRIATE RELIEF
The need to protect the plaintiff's constitutional rights by providing appropriate relief was considered in the Mahambehlala239 and Mbanga240 cases. It provides that public administration must be guided by the democratic values and principles enshrined in the Constitution, including the maintenance of the high standard of professional ethics, the provision of services impartially, fairly, equitably and without bias, and the necessity to respond on people's needs. The reasoning that follows from these cases is that the remedies should be announced in PIEL cases should have a similar effect to the relief sought in the first instance.
INJUNCTION OF ENGLISH LAW
The second requirement that will be considered in an injunction application relates to the applicant demonstrating the occurrence of irreparable harm if the relief is not to be granted. This requirement is at the heart of an injunction application, and at the same time to the protection of all rights. In cases where public interest litigants seek an injunction, it will not be difficult to demonstrate the requirement of irreparable harm to the public, as it is the nature of the State Department's mandate to undertake it.
CONCLUSION
A petitioner seeking an injunction should base its arguments on how the public would benefit from the relief sought, as opposed to the harm the public would suffer if the same relief were not granted.259. Courts in South Africa continue to play a key judicial activist role in socio-economic rights, and similar action is needed in relation to environmental law, which may require its own tailored remedy.
INTRODUCTION
RECOMMENDATIONS
Society is becoming more aware of the existence of various environmental statutes and the importance of court decisions in maintaining a healthy environment. NEMA provides for such cooperation between the state and the private sector in relation to the implementation of environmental statutes. Denial of effective legal remedies based on procedural hurdles does no good to development and environmental protection.
CONCLUSION
The courts' approach to the enforcement of environmental law by public interest litigants must be addressed in the same way as for private litigants. Loots, C „Locus Standi to claim Relief in the Public Interest matters involving the Enforcement of Legislation SALJ 16. Murombo, T 'Locus Standi to claim relief in the Public Interest in matters involving the Enforcement of Legislation' (1987) SALJ 131.
