There is a presumption in South African common law against the retrospective application of legislation. This point was illustrated in the case of Chief Pule Shadrack VII Bareki NO and Another v Gencor Limited and Others 2006 (8) BCLR 920 (T) where the applicants unsuccesfully sought remediation of the area that Gencor affiliates had last mined before 1985. It was successfully argued by the respondents that the legislator did not intend to burden future owners for harm caused before 1999.

However, as a result of the 2009 amendments to National Environmental Management Act (NEMA) it would no longer be possible to argue against retrospective liability for environmental damage.

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

The intention of the legislator in both NEMA and section 19 the National Water Act (NWA) was to create obligations on owners, those in control or with a right to use land, or those who caused the harm 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 and this contamination remains evident in the environment.

Liability for retrospective environmental degradation or harm is also envisaged 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.

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