There is a presumption in South African common law against the retrospective application of legislation; but the September 2009 amendments to the National Environmental Management Act (NEMA) created an exception to this rule.

The new section 28(1A) confirmed that the duty of care and remediation for environmental damage also applies to damage that occurred before the commencement of NEMA (prior to 1999). Owners, or those who caused the harm, will be liable, even if the damage arises at a different time from the actual activity or is likely to arise at a different time.

In terms of NEMA a duty of care and remediation is owed by the owner, a person in control, or a person who has a right to use the land or premises on which any activity or process is or was performed or undertaken.

It was successfully argued in Chief Pule Shadrack VII Bareki NO and Another v Gencor Limited and Others 2006 (8) BCLR 920 (T) that the legislator did not intend to burden future owners for harm caused before 1999, however, following the 2009 amendments to NEMA, this argument would no longer be possible.

The intention of the legislator in both NEMA and section 19 the National Water Act (NWA) was to create obligations to remove pollution from the environment and to rehabilitate affected areas.

Reasonable measures must be taken, not only where activities are currently causing pollution or where they may in future cause pollution, but also where past activities have caused contamination, which contamination remains evident in the environment.

Liability for retrospective environmental degradation or harm is also evidenced in the new National Environmental Management Waste Act 2008, parts of which came into force in July 2009.

The retrospective provisions regarding contaminated land have not yet been promulgated but will have far-reaching consequences for land ownership and transfer, in that a registry of contaminated land will be set up and it will be an offence to knowingly transfer contaminated land without providing notice to the buyer.

The drafters of NEMA borrowed heavily from foreign jurisdictions which assume that although it may be unfair to compel a company to pay for pollution that occurred when protection of the environment was not a priority, it can also be argued that it is even more ‘unfair’ to expect the government (or the taxpayer) to pay for clean-up activities when they derived no benefit from the business.