Document 1 of 1 Source: Daily Law Reports (as at 20 April 2007)/CHRONOLOGICAL LISTING OF CASES/2004/Serial No 0001 ? 0100/Hichange Investments (Pty) Ltd v Cape Products Company (Pty) Ltd t/a Pelts Products & Others 2004 JDR 0040 (E)

Hichange Investments (Pty) Ltd v Cape Products Company (Pty) Ltd t/a Pelts Products & Others 2004 JDR 0040 (E) 2004 JDR 0040 p1 Reportable Citation

2004 JDR 0040 (E)

Case No

1050/2001

Court

Eastern Cape Division

Judge

Leach, J

Heard

September 27, 2001

Judgment

November 22, 2001

[zSMz] Summary Environmental law ? Atmospheric pollution ? Atmospheric Pollution Prevention Act 45 of 1965 ? Effluent from tanning process ? Exposure guidelines exceeded ? Provisions of s 28 and common law remedies ? Whether relief should be granted ? Fundamental rights affected by pollution ? First respondent had breached s 28 (1) ? Fourth respondent (head of Provincial Environmental Department) ordered to direct first respondent under s 28(4) to investigate impact of gases from latter's tannery and report thereon. Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products Case No: 1050/2001 22-11-2001 ECD Leach J 44 pages Serial No: 0040/2004 CD 9/2004 [zJDz] Judgment Leach, J: The applicant company is the owner of certain immovable property in Markman township, Port Elizabeth which it has let to Southern Star (PE) (Pty) Ltd ('Southern Star"), a company which forms part of the so-called "Southern Star Group" in which the applicant also has an interest. Southern Star's principal business is the delivery of new motor vehicles manufactured by the Delta Motor Corporation, such vehicles being driven to its premises where they are formed up into convoys for delivery to various destinations. Due to changes in Delta's method of distribution, Southern 2004 JDR 0040 p2

Star will need to keep these vehicles at the appellant's premises for longer periods than has been the case in the past and to properly protect them from the elements. In order to facilitate this, a redevelopment program costing in excess of R12 million is required at the applicant's premises. I should further mention that Southern Star's other activities at the site include a service centre to service its own fleet of vehicles and an engineering works to build truck bodies for industry, including its own requirements. The first respondent is a close business neighbour of the applicant in the Markman township, its premises and those of the applicant being separated merely by a railway line and the railway reserve immediately adjacent thereto. Trading under the name of Pelts Products, the first respondent carries on business as a semi- processing tannery, converting cured raw hides and skins into mineral-tanned bovine (cattle) leather and pickled ovine (sheep) pelts which it then supplies to tanneries having finishing facilities. This tanning process produces a number of chemical waste products, in particular the malodorous hydrogen sulphide ("H 2 S "), and is therefore a "sulphide process" as envisaged by the second schedule to the Atmospheric Pollution Prevention Act No.45 of 1965 ("APPA"). The applicant alleges that noxious gases created by the tannery are discharged into the atmosphere, causing not only a foul and offensive odour but the rapid and uncontrollable corrosion of metal structures and equipment on its property, and that such gases are also prejudicial to the health and well-being of those present on its premises and other inhabitants of Port Elizabeth. The applicant claims that the second respondent (the Director General: Environment Affairs and Tourism), the 2004 JDR 0040 p3 third respondent (the Chief Air Pollution Control Officer appointed in terms of s. 6 of APPA), the fourth respondent (the head of the Department of Economic Affairs and Tourism, Eastern Cape) and the fifth respondent (the interim municipal manager of the Mandela Metropolitan Municipality within which the properties of the applicant and first respondent are situated) have failed, neglected or refused to take such reasonable steps as are required to bring this pollution to an end, notwithstanding its attempts to persuade them to do so. The applicant and the fifth respondent settled their differences at the doors of the court, resulting in the proceedings against the fifth respondent being withdrawn. Furthermore, at the commencement of argument leading counsel for the applicant, Mr Eksteen, informed me that no case had been made out against the second respondent against whom no order would be sought. I am therefore called upon to decide whether the applicant is entitled to relief against the three remaining respondents. I should also mention that on 10 October 2001, the day before the hearing before me commenced, the applicant filed a supplementary affidavit. On the first day of the hearing, proceedings were delayed for some time while the first respondent prepared an affidavit in response thereto, which was handed in when proceedings eventually got under way. At

that stage Mr Swanepoel, counsel for the second and third respondents, stated that he had not had the opportunity of considering this latest affidavit and wished to reserve his rights in regard thereto. This led to the matter again standing down for a while and, when the Court eventually reconvened, I was informed from the bar that the parties had agreed that both the applicant's 2004 JDR 0040 p4 supplementary affidavit filed on 10 October and the first respondent's reply thereto filed that morning, should be regarded as not having been filed at all! I have therefore had no regard to those affidavits. I have also not had regard to an affidavit of Mr Couldridge, Annexure "REP3", filed by the applicant in reply, as it has not been signed and Mr Eksteen, quite correctly, placed no store on it. I turn now to the facts. The effluent caused by the first respondent's tanning process lies at the heart of the dispute between the parties. Salt-cured skins and hides delivered to the first respondent's tannery are initially treated in rotating wooden drums containing a high pH sulphide and lime based liquor in order to remove the hair and fat from the skin. The hides and skins then pass through a "splitting" stage, resulting in two identical but thinner pieces, before they are pickled in a low pH liquor of salt and acid. After this, the ovine skins are sold as "pickled pelts" while the bovine hides are tanned with chromium sulphate before being sold as "wet blues". The overall processing operation produces various emissions and forms of waste, and gives rise to various odours caused by gaseous emissions including ammonia and H 2 S. Up until 1996, the first respondent disposed of the effluent from its tannery through the municipal sewage system although its manager, one Howard, who deposed to its opposing affidavit, alleged that the effluent was treated by way of aeration ponds before being so discharged. In any event, in 1996 the first respondent expanded its aeration system by creating two effluent treatment ponds which are illustrated in the photographs attached to the founding affidavit. It is the applicant's case that the odour and pollution emanating from these ponds is a cause for real complaint. Although the first respondent denies this to be the case, the third respondent 2004 JDR 0040 p5 confirms that from 1996 the odour from these pounds "became a real problem" (I shall revert to this issue in due course). Southern Star certainly complained of corrosion and odour problems attributable to H 2 S at the applicant's premises and, in a report from the CSIR dated November 1998 (a copy of which is attached to the applicant's founding papers as PIE3) it is recorded that a previous CSIR report of November 1997 had identified sulphide gas as the cause of the corrosion which had commenced in 1996. In any event, the CSIR conducted a two-day survey to ascertain whether there could be potential health problems and to identify the source. This resulted in a finding (a) that the main contributing source of H 2 S omissions was the pond on the first respondents premises which is situated merely some 25 metres from the applicant's premises, the H 2

S level there being measured up to six parts per million (b) that both nuisance and public

health exposure guidelines were being exceeded, and (c) that occupational health exposure limits were being approached and, possibly, exceeded during normal operations. The amounts of H 2 S detected downwind from the effluent ponds exceeded by more than three hundred times the Department of Environmental Affairs and Tourism nuisance guideline of 0,003 parts per million and by up to thirty times the public exposure guideline of 0,2 parts per million. Further tests by the CSIR also demonstrated considerable corrosion on the applicant's premises occasioned by H 2 S. Bearing in mind the evidence that H 2 S smells like rotten eggs, it is therefore not surprising that the applicant complained about the offensive odour coming from the first respondent's premises and the corrosion which was being caused. 2004 JDR 0040 p6 In October 1998, the third respondent, Mr S.M. Lloyd, who had been appointed the chief air pollution officer in terms of APPA, was approached by an organization calling itself "The Pollution Monitoring Committee of Port Elizabeth", which invited him to a meeting and furnished him with a legal opinion to the effect that the odours emanating from the first respondent's premises could be dealt with on the basis that the tannery's activities fell under "process 8" of APPA. He was ultimately persuaded that the first respondent's activities indeed fell under the ambit of process 8 and, consequently, he advised the first respondent to apply for registration under the provisions of that APPA and then entered into negotiations with the first respondent to attempt to address the problem as a matter of priority. In terms of s. 9 of APPA, no person may carryon a scheduled process within a controlled area without holding a registration certificate. Section 10 thereof further provides as follows: "10. Application for and issue of registration certificates and provisional registration certificates (1) An application for a registration certificate or a provisional registration certificate under section nine shall be lodged with the chief officer in the prescribed form and shall be accompanied by such information as may be prescribed. (2) The chief officer shall after consideration of any such application- (a) in the case of an application under sub-paragraph (ii) of paragraph (a) of subsection (1) of the said section- (i) if he is satisfied that the best practicable means are being adopted for preventing or reducing to a minimum the escape into the atmosphere of noxious or offensive gases produced or likely to be produced by the scheduled process in question, grant the application and issue to the applicant a registration certificate in the form prescribed; or (ii) if he is not so satisfied, by notice in writing require the applicant to take the necessary steps within a period specified in the notice for preventing or reducing to a minimum the escape into the atmosphere of noxious or offensive gases produced or likely to be produced by the said scheduled process. 2004 JDR 0040 p7 (b) in the case of an application under paragraph (b) or (c) of the said sub-section, and subject to the provisions of subsection (4)-

(i) if he is satisfied in regard to the matters referred to in sub-paragraph (i) of paragraph (a) of the sub-section, grant the application and issue to the applicant a provisional registration certificate in the form prescribed; or (ii) if he is not so satisfied, by notice in writing, advise the applicant to take the necessary steps of the nature contemplated in sub-paragraph (ii) of paragraph (a), within a period specified in the notice, in order that he may be so satisfied. (3) An applicant who has complied with the requirements of any notice under subparagraph (ii) of paragraph (a) or sub-paragraph (ii) of paragraph (b) of sub-section (2), within the period specified in that notice or within such further period as the chief officer may allow, shall, subject to the provisions of sub-section (4), be entitled to the issue to him of a registration certificate or a provisional registration certificate, as the case may be. (4) No provisional registration certificate shall be issued under this section, unless the chief officer is satisfied that the scheduled process in question may reasonably be permitted to be carried on in the locality affected, having regard to the nature of that process, the character of the locality in question, the purposes for which other premises in such locality are used and any other considerations which in his opinion have a bearing on the matter, and that the carrying on of that process in or on the premises in question would not be in conflict with any town-planning scheme in operation or in course of preparation in respect of such locality. (5) In the case of an application under paragraph (b) of sub-section (1) of section nine the chief officer shall consult the local authority, if any, in whose area of jurisdiction the proposed scheduled process will be in operation and any local authority in whose area of jurisdiction there are residents who may in the opinion of the chief officer be affected by the carrying on of the scheduled process to which the application relates, and shall record and consider the opinion and recommendation of such local authority or authorities." As I understand things, there are two important control variables in an effluent disposal system such as that with which we are here dealing, namely, the mixed liquor suspended solids ("MLSS") ? also referred to as the biomass ? and the dissolved oxygen ("DO") level. Oxygen gas has a limited solubility in water and the MLSS needs to be aerated and mixed on a continuous basis as, unless sufficient mixing and aeration of the MLSS occurs, the biomass becomes starved of oxygen, settles and forms a sludge which, when mixed again, causes the release of H 2 S gas. This problem is particularly pertinent in the tanning industry as tannery effluents tend to be high in dissolved mineral pollutants while high organic loads demand high 2004 JDR 0040 p8 oxygen levels in the receiving water bodies. Consequently, anaerobic conditions tend to lead to sulphide gas generation and corrosion. The treatment of tannery effluent, where low pH chrome liquors mix with high pH lime-sulphide liquors, also tends to allow dissolved sulphide to be released to the atmosphere as H 2 S gas. This problem is typically overcome by the addition of large quantities of lime to the mixed liquor in order to increase the pH, thereby keeping the sulphide in solution. Unfortunately this is only a short-term solution as down-stream mixing with other waste waters leads to a drop in the

pH and the resultant release of H 2 S gas in sewers and at the sewage works. In order to avoid this, the mixed tannery liquor is typically dosed with a flocculent to precipitate solids out of the liquid phase but this, in turn, produces a sludge which is organically unstable and tends to putrefy rapidly, giving rise to mal-odours and fly problems. In the light of the provisions of s.10(2) of APPA, the third respondent instructed the first respondent to appoint an approved and experienced consultant to do a full assessment of its operations and to draw up an abatement program to be implemented as soon as practically possible. The consultant appointed by the first respondent for this purpose was one Barnard of the environmental division of the Leather Industries Research Institute (LIRI), whose report became available in March I April 1999. In order to combat the problems described above, Barnard proposed a segregation of the various process liquors with those containing sulphide, on the one hand, and chrome, on the other, being separated both from the general effluent and from each other, and the various effluents thereafter being treated in different ways. He also recommended an activated sludge process in order to remove the bulk of the organic matter from the waste water. This proposed 2004 JDR 0040 p9 regime involved considerable modification to the process the first respondent was then using to deal with its effluent, and the third respondent afforded the first respondent until the latter half of 1999 to implement it. As its activities had since been registered as a schedule 8 process under APPA, the first respondent called upon the third respondent to issue a certificate in respect thereof and, on 1 November 1999, he issued the first respondent with a provisional registration certificate which, inter alia, contained the following conditions: "4. APPLIANCES AND MEASURES TO PREVENT AIR POLLUTION 1) All sulphide containing liquors and effluent from hide soaks will be segregated at source and passed through an approved fact, grease and oil removal system into a collection pit from where it will be treated in one of the two batch sulphide oxidation dams with sufficient aeration capacity, before being discharge into the activated sludge treatment system. 2) The pH in the sulphide oxidation dams will be maintained above 10.5 at all times and will be monitored by routine measurements and recording of the readings. 3) The sulphide content in the liquor leaving the sulphide oxidation dams will be monitored routinely and recorded and will not exceed 10mg/litre expressed as Na2S. 4) The Total COD content in the liquor leaving the sulphide oxidation dams will be monitored routinely and recorded. 5) The activated sludge treatment basin will have sufficient aeration capacity to maintain the entire liquor volume in an aerobic condition at all time . This will be confirmed by routine monitoring and recording of Mix Liquor Suspended Solids (MLSS) content (Imhoff Cone Settling Rate) in the basin and the Dissolved Oxygen (DO) and Total COD, and sulphide content in the liquor leaving the basin. The MLSS content should be maintained between 4 000 and 10 000 mg/L, the DO content above 0.2 mg/L,

the Total COD below 5 000 mg/L and the sulphide content below 5mg/L expressed as Na2S. 6) Excess sludge in the activated plant will be removed in a clarifier system and dried in approved sludge drying beds. Odour emissions from the drying beds will be maintained within acceptable limits. 7) An operational and maintenance schedule outlining all measures and steps proposed to ensure stable operation and equipment availability of the entire effluent system at times, will be submitted for approval within 3 weeks from the date of the issuing of this document. 8) Details on qualifications and experience in wastewater treatment systems of the person who will be responsible for measuring and monitoring of all the parameters of the effluent system, will be submitted for consideration. 9) Details of the proposed routine measuring and monitoring program of the effluent 2004 JDR 0040 p10 quality and air emissions, including a list of parameters and frequency of measurements and reporting, will be submitted within 3 weeks from the date of the issuing of this document. The said program will include inter alia a daily plant log sheet on all effluent plant parameters and ambient sulphide readings that will be available for inspection. 10) A qualified and experienced supervisor will be in charge of the effluent treatment plant at all times during the operation of the process." This provisional certificate was issued for a period of three months during which the first respondent was to adjust its system to meet the requirements set out in the conditions quoted above. At the end of that period, the monitoring envisaged in condition 4 (4) above indicated that the first respondent was not yet meeting all the imposed requirements. This resulted in further negotiations which also involved the local municipality, the third respondent stating in his answering affidavit that he viewed the problem as a serious one as the municipality had received complaints since 1993 and it was envisaged that far reaching alterations and improvements would have to be phased in at the tannery. Be that as it may, the provisional certificate was extended from time to time. By September 1999, although certain modifications had been completed and new equipment installed, according to the third respondent the processes at the first respondent's premises still needed "further optimisation". The municipality thereafter carried further tests on behalf of the first respondent in order to determine whether the effluent treatment plant conditions were acceptable and whether the imposed conditions had been met. It was contended by the first respondent at the time that the conditions had been unilaterally imposed without adequate consultations, something denied by the third respondent in a letter (PIE 2) addressed to the first respondent on 23 February 2000 in which, inter alia, it is stated: 2004 JDR 0040 p11 "Your plant has been causing extremely serious air pollution problems over the past number of years that you were unable to resolve despite all the expertise at your disposal. For that very reason, on advice from your consultant, those specific

conditions were set, because the expert firmly believes that should you meet them, the problem will largely be eliminated. ...... After considering your situation and in order to further accommodate you to attend to the above aspects, it was decided to extend the validity of your certificate to 8 April 2000. Your full co-operation is requested to ensure that you meet the requirements in clause 4 by the new deadline, or to discuss problems in meeting them with me immediately." In a written reply dated 24 February 2000, the first respondent immediately denied that its plant had been causing serious air pollution. It stated that there was no proof of any such pollution and that it believed that its activities caused " just the normal air pollution one can expect from a tannery such as ours ". However, notwithstanding the first respondent's denial of causing serious air pollution and the strict terms of the directive contained in PIE2, on 7 April 2000 the third respondent found himself obliged to write to the Human Rights Commission (to which the applicant had earlier complained about the pollution caused by the tannery) stating that it was clear from the effluent monitoring results that despite improvements at the plant, the tannery was still not meeting the standards which had been set for odour control and that a visit to the factory was planned for early May 2000 in order to perform a full assessment of the situation and to decide on what further steps were needed to address the problem. That there was still a problem at that stage is self evident from the third respondent's letter to the first respondent of 10 April 2000, in which the third respondent stated that the first respondent's allegation that there was no proof of its plant causing 2004 JDR 0040 p12 serious air pollution was unfounded, particularly in view of the fact that the first respondent had admitted an inability to maintain H 2 S levels below 30 mg/l, a concentration far above the levels prescribed in conditions 4 (2) and 4(3) of the certificate. He went on to direct the first respondent's attention to its own consultant's view that it could do a lot more than it was doing by increasing aeration and using "EU approved chemicals", stating that such a regime would have to be implemented speedily and as a matter of priority. He concluded: "After considering your position, I have decided to extend the period of validity of your certificate .... to 31 May 2000. Attached, also find amended pages of Section Four of the certificate which reflect the current situation and settings slightly higher figures for sulphide, to further accommodate your operation. You are requested to urgently address your problems in the period allowed in order to comply with the requirements, failure of which would result in legal action." (The amended pages referred to were not attached to the copy of this letter in the papers, and I therefore do not know to what extent the figures for sulphide were revised ?

however in a subsequent letter of 9 June 2000, the third respondent referred to section 4 of the amended provisional certificate, stating that condition 6 thereof prescribed that the DO content should be maintained at all times above 0,2 mg/l in the activated sludge basin and the MLSS between 4000 and 10 000 mg/l). On 24 May 2000, the city engineer's department of the local municipality reported that the first respondent was still not meeting its requirements, and that the aeration tank was then basically anaerobic with virtually no dissolved oxygen and a very high MLSS level. As a result of this and measurements of H 2 S taken by Mr Titima of the Port Elizabeth Municipality, the third respondent addressed a formal notification to the first respondent on 9 June 2000, stating that its plant was not compiling with the conditions of the certificate and that the first respondent's co-operation in addressing 2004 JDR 0040 p13 its non-compliance with the certificate was required in order to avoid legal action. He further gave the first respondent a period of 21 days within which to formally submit a program to increase DO to a level constantly above 0,4 mg/l and to reduce MLSS to a level below 10 000 mg/l, and to submit a time schedule for implementing such steps. On 18 July 2000, more than five weeks after this directive, the third respondent sent a further letter to the first respondent, reminding it to submit the requested program and relevant information in writing by 29 July 2000 and, as its plant was not complying with the conditions of its certificate, calling on it to implement immediate steps to meet those conditions. By 5 October 2000, measurements taken at the first respondent's tannery fell within the limits prescribed by the registration certificate for the first time. However measurements taken on 8 November and 14 November 2000, while showing DO levels to then be "acceptable", were not in compliance with the levels specified by the certificate. The MLSS levels were then also too high. On 2 February 2001, the applicant's attorney gave notice to the fourth respondent under s. 28 (12) of NEMA, recording that the pollution emanating from the tannery had become "intolerable". A copy of this notice was forwarded to the third respondent and, presumably in response thereto, an official site visit was conducted on 5 February 2001. This visit, in turn, led to a Mr R. Pillay, whom the third respondent had requested to exercise controlling functions as air pollution control officer within the Eastern Cape, issuing a directive on 4 April 2001 (PIE26) giving the 2004 JDR 0040 p14 first respondent 30 days within which to comply with a number of requirements. These included the submission of feasible strategies and plans to address emissions from its current operations, the use of EU approved chemicals, the implementation of various monitoring and measurement programs, and the submission of monthly reports. On 25 June 2001, Pillay wrote to the first respondent, complaining that it had failed to

respond to his directive and stating that it was therefore guilty of an offence. He also called upon the first respondent to either respond or to halt all current operations within 30 days. On 29 June 2001, the applicant's attorney wrote to the Department of Environmental Affairs and Tourism, stating that he had been provided with copies of the directives of 4 April 2001 and 25 June 2001 and that the problem caused by odours and pollution emanating from the first respondent had been in existence for several years. He also called upon the department to confirm in writing that no further extensions would be granted to the first respondent and that the department would undertake to ensure that the first respondent's operations would be halted if it continued not to comply with the directives it had been given or if its emissions exceed the prescribed limits. On 25 July 2001, a day after the lapse of the 30 day period the first respondent had been afforded to comply with the third respondent's requirements, the applicant's attorney communicated with the third respondent to ascertain whether the first respondent had complied with his directive. He was informed that the first 2004 JDR 0040 p15 respondent had not complied and that a representative of the third respondent's office would conduct a site inspection on the 31 July 2001. On 1 August 2001, the third respondent informed the applicant's attorney that a mistake had been made and that the inspection would only be conducted on 2 August 2001. On 3 August 2001, the third respondent informed the applicant's attorney that the first respondent had not complied with the directive and appeared probably unable to do so. The third respondent went on to state that he would take a decision on what to do on 6 August 2001. On this latter date, Pillay met with representatives of the first respondent at his office in Cape Town. As is clear from the letter of the first respondent's attorney dated 20 July 2001 (PH15), as well as the first respondent's own letter of 24 July 2001 (PH16) and Pillay's own comments, the first respondent had by then not been able to comply with the directives it had been given. On 8 August 2001, the applicant turned to this Court for relief. By the time of the conclusion of argument before me, the relief it sought had been refined from that initially set out in its notice of motion to that contained in a draft order handed in by counsel, which reads as follows: "1. That the Third Respondent be ordered to suspend the operation of the registration certificate issued to the First Respondent in terms of the Atmospheric Pollution Prevention Act, 1965 (Act 45 of 1965), until the First Respondent has complied fully with alternatively has provided Third Respondent with proof that it can and shall comply with each and every requirement of the directives issued to the First Respondent by the Third Respondent on 4 April 2001 and 24 August 2001. 2. That the Fourth Respondent be ordered to direct the First Respondent in terms of Section 28 (4) of the National Environmental Management Act, 1998 (Act 107 of 1998) to investigate, evaluate and assess the impact of gases emitted from the

First Respondent's tannery situated at erf 516 Markman Township, Port Elizabeth and the 2004 JDR 0040 p16 effluent treatment plant thereof in accordance with the environmental impact assessment process prescribed in Government Notice R1183 of 5 September 1997 and to take such further steps in terms of Section 28 (4)(b), (c) and/or (d) as are necessary in the light of the findings of the investigation, evaluation and assessment referred to above to ensure that: 2.1 First Respondent consistently complies with the registration certificate issued to it in terms of the Atmospheric Pollution Prevention Act of 1965; and 2.2 First Respondent consistently complies with the provisions of the National Environment Management Act of 1998. 3. That the First Respondent be ordered to halt all activities at the tannery situated at erf 516 Markman Township, Port Elizabeth, until he has complied fully with alternatively has provided Third Respondent with proof that it can and shall comply with each and every requirement of the directives issued to the First Respondent by the Third Respondent on 4 April 2001 and 24 August 2001. 4. That the First, Third and Fourth Respondents be ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of the application." I turn now to consider whether, in the light of the facts which I have set out, the applicant is entitled to this relief. At the outset it is necessary to consider the material provisions s. 28 of NEMA which are central to the dispute between the parties. They read as follows: "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. (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; 2004 JDR 0040 p17 (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 or a provincial head of department may, after consultation with any other organ of state concerned and after having given adequate opportunity to affected persons to inform him or her of their relevant interests, direct any person who fails to take the measures required under subsection (1) to- (a) investigate, evaluate and assess the impact of specific activities and report thereon; (b) commence taking specific reasonable measures before a given date; (c) diligently continue with those measures; and (d) complete them 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. (5) The Director-General 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 environment 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; (f) any other relevant factors. (6) ...... (7) Should a person fail to comply, or inadequately comply, with a directive under subsection (4), the Director-General or provincial head of department may take reasonable measures to remedy the situation. ............................................................................................... (12) Any person may, after giving the Director-General or provincial head of department 30 days' notice, apply to a competent court for an order directing the Director- 2004 JDR 0040 p18 General or any provincial head of department to take any of the steps listed in subsection (4) if the Director-General 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. (13) When considering any application in terms of subsection (12), the court must take into account the factors set out in subsection (5)." In the applicant's founding affidavit deposed to by a director of the applicant, one Pieterse, it is stated that the present proceedings are brought in terms s. 28 (12) which, as is set out above, entitles an applicant to seek an order directing the Director-General or

any provincial head of department to take any of the steps listed in s. 12 (4) should such Director-General or head of department fail to inform such an applicant in writing that a person contemplated in s.28(12) has been directed to take the steps in question. Accordingly, even though s.28(12) may be relied upon to found the relief sought against the fourth respondent as contained in prayer 2 of the draft order quoted above, it does not empower the court to direct the third respondent to suspend the first respondent's registration certificate (as sought in prayer 1) or to direct the first respondent to halt its activities at the tannery (as sought in prayer 3), and it is therefore not surprising that the respondents argued that the relief set out in those prayers could therefore not be granted under the section. Mr Eksteen, however, drew attention to the fact that Pieterse had also specifically stated that the applicant relied upon s.32(1) of NEMA, and submitted that the relief in prayers 1 and 3 could be granted under that section which provides: 2004 JDR 0040 p19 "32. Legal standing to enforce environmental laws (1) Any person or group of persons may seek appropriate relief (my emphasis) in respect of any breach or threatened breach of any provision of this Act, including a principle contained in Chapter 1, or any other statutory provision concerned with the protection of the environment or the use of natural resources- (a) in that person's or group of person's own interest; (b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings; (c) in the interest of or on behalf of a group or class of persons whose interests are affected; (d) in the public interest; and (e) in the interest of protecting the environment." In the light of these provisions, Mr Eksteen therefore submitted that in the event of the first respondent having breached either s. 28 (1) or "any other statutory provision concerned with the protection of the environment or the use of natural resources" , the applicant was not restricted to claiming relief under s. 28 (12) but could grant any other relief that may be "appropriate". It is trite that in application proceedings, the affidavits take the place not only of the pleadings in an action but, also, of the essential evidence that would be led at a trial ? see for e.g. Hyperchemicals International (Pty) Ltd v Maybaker Agrichem (Pty) Ltd 1992 (1) SA 89 (W) at 92 and the cases there cited. It may well be that the applicant's affidavits are not a model of draftsmanship and that a cause of action for "appropriate relief' under s. 32(1) may not have been as clearly spelled out as one would have liked, but there is no reason for the applicant to be limited to relief under s. 28 (12) if the facts which are set out justify other "appropriate relief" being granted under s. 32 (1), to which reference was indeed made ? cf. Minister of Justice v A Nation Wide Truck Hire 1981 (4) SA 826 (A) at 833 G ? H. 2004 JDR 0040 p20

I therefore turn to consider whether the relief claimed in prayers 1 and 3 of the draft can be granted as "appropriate relief' under s. 32(1) and whether, on the facts, such relief is justified. In contending that the prayers claimed could indeed be granted as "appropriate relief", Mr Eksteen used as his starting point s.7 of the Constitution (Act No.108 of 1996) which records the Bill of Rights as being the cornerstone of democracy in this country and obliges the State to respect, protect, promote and fulfil those rights. In addition, s. 24 of the Constitution, being part of the Bill of Rights, further provides for everyone to have the right to an environment "that is not harmful to their health or well-being" and to have the environment protected for the benefit of present and future generations through reasonable legislation and other measures that prevent pollution and ecological degradation. As "pollution" is defined in NEMA as meaning "...any change in the environment caused by ... odours ... emitted from any activity ... including storage or treatment of waste or substances ... where that change has an adverse effect on the human health or well-being or ... on materials useful to people or will have such an effect in future" he therefore argued that NEMA was promulgated in order to protect these rights, with s. 28 (1) thereof obliging a person causing pollution or degradation of the environment to take measures to present such pollution or degradation occurring or, should it be authorised by law and cannot reasonably be avoided or stopped, to minimise and rectify its effects. Accordingly, counsel's argument, as I understood it, was that if the gases emanating from the first respondent's premises were indeed adverse to human health and well-being and had an adverse effect on materials at its premises, the first respondent would be responsible for having breached the provisions of NEMA, particularly its obligations under s. 28 thereof, by being responsible for a significant 2004 JDR 0040 p21 pollution or degradation of the environment as envisaged by that Act ? and that the applicant could rely on s. 32 (1) for the relief it claimed. Accepting for the moment that the first respondent is in fact responsible for having breached the provisions of NEMA by causing a significant pollution that is adverse to human health and well-being and has an adverse effect on materials at the applicant's premises, I turn now to consider what remedies other than an order under s. 28 (12) might constitute "appropriate relief' under s. 32 (1). A person aggrieved by a neighbour whose activities cause pollution which interferes with his lawful use of his property and his own well-being may, of course, have a number of remedies under the common law; in particular those relating to "nuisance" ? as to which see for e.g. Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) and Burchell Principles of Delict at 65 ? and persons acting in breach of the provisions of APPA whose activities are the cause air pollution have therefore been restrained by way of interdict -see: Minister of Health & Welfare v Woodcarb (Pty) Ltd 1996 (3) SA 155 (N) and Minister of Health v Drums & Pails Reconditioning CC 1997 (3) SA 867 (N). Eksteen, however, eschewed any reliance upon such common law remedies for purposes

of his argument (presumably because the necessary factual allegations relevant thereto had not been made in the papers) and contented himself with arguing that the relief sought could be granted under the Constitution. In Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) the Constitutional Court dealt with s. 7 (4) of the Interim Constitution, which entitled a court to grant 2004 JDR 0040 p22 "appropriate relief' upon an infringement of a fundamental right. The members of the Court appear to have been ad idem that, in principle, while a common-law remedy such as damages could constitute "appropriate relief' as envisaged by that section, the range of remedies from which such relief could be selected was not restricted to existing common-law remedies ? see in particular the judgment of Ackermann J at 821 [60] and Kriegler J at 838 [104]. Importantly Ackermann J went on further to observe ? at 826 [69]: " ...... have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to 'forge new tools' and shape innovative remedies, if needs be, to achieve this goal." The learned judge also remarked ? at 799 [19] ? that "appropriate relief' will be the relief that is required to protect and enforce the rights enshrined in the Constitution. And in his judgment ? at 834 [94] ? Kriegler J observed that when courts give relief "they attempt to synchronise the real world with the ideal construct of a constitutional world" . The difficulty I have in deciding whether the relief claimed in prayers 1 and 3 of the draft order could be granted as what might loosely be referred to as "constitutional relief', extending and developing the common law, is that the applicant did not seek to show that the common law, without such development, was inadequate to protect its constitutional rights. As was observed in Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at 956 [40], there are two stages which cannot be 2004 JDR 0040 p23 hermetically separated from each other to be considered in developing the common law beyond existing precedent. The first is to consider whether the existing common law requires development in accordance with the objectives set out in s. 39 (2) of the Constitution, an inquiry requiring a reconsideration of the common law in the light of s. 39 (2). It is only when this inquiry leads to a positive answer that the court is called upon to concern itself with the second stage viz. how such development is to take place in order to meet the s. 39 (2) objectives. As the applicant really did not address the first stage, it is

well nigh impossible for this Court to take the quantum leap to the second stage. I am therefore not in a position to decide whether the relief sought by the applicant is justified by an extension of traditional common law remedies. Should I be wrong in reaching that conclusion, I turn to consider whether the relief claimed could be granted. It needs to be remarked, particularly in regard to the applicant's first prayer, that the Bill of Rights not only entrenches certain rights but also binds the State and all of its organs, thereby imposing a duty on the State and its organs not to perform any act which leads to an infringement of those rights ? see the Carmichele case, supra at [44]. Accordingly, for present purposes I am prepared to accept that the circumstances of a case may well be such that a court would find that a person in the position of the present applicant is entitled to an order sought in terms similar to prayers 1 and 3, in effect usurping the function bestowed upon the third respondent to withdraw a certificate issued under APPA and directing the closure of a factory. What then needs to be considered is whether this would be an appropriate case for such relief to be granted. 2004 JDR 0040 p24 In considering this issue, it is useful as a starting point to remember that the entrenchment of certain rights in the Bill of Rights imposes a duty on the State not to perform an Act that infringes those rights and, in certain circumstances, also leads to a positive component obliging the State and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection ? see the Carmichele case, supra at [44]. NEMA appears to be an attempt on the part of the legislature to provide laws and structures designed to afford protection to fundamental rights likely to be adversely affected by pollution ? indeed this is clearly set out in the preamble to the Act. And while the courts of this country are obliged to remain vigilant and should not hesitate to ensure that the common law, both in the civil and criminal spheres, is developed to reflect the spirit, purport and objects of the Bill of Rights, judges should be mindful that the major engine for law reform is the legislature, not the judiciary ? see the Carmichele case, supra at 954 ? 955 [36]. It seems to me that it goes without saying that even if this Court does have the power to make the order as sought in prayers 1 and 3, the exercise thereof would be determined largely by proof of the level and severity of the offending pollution. One would be far more inclined to direct closure of a factory where there is evidence of persistent, serious and ongoing pollution than in a case where, even if there is a degree of pollution, it can neither be regarded as particularly serious nor likely to persist indefinitely in the future. With this observation in mind, it is on a consideration of the facts disclosed in the papers that the applicant's case runs into troubled waters. 2004 JDR 0040 p25 Absent from the applicant's papers is any direct evidence quantifying the current level of pollution. The applicant relies, in particular, upon three reports from the CSIR dated 12 May 1998, June 1998 and 9 November 1998, respectively marked as PIE5, PIE4 and PIE3. None of these reports are confirmed under oath and must be regarded as hearsay. In addition, they all reflect the position as it was several years ago and fail to take account of

the fact that, pursuant to the advice it received from Mr Barnard of LIRI in March 1999, the first respondent implemented a revised effluent treatment system involving, as I have already described, the segregation of the various liquors, thorough aeration of the sulphide-rich effluent and improvements to the solid waste collection system, all of which only came on stream later that year. In addition, the first respondent points out that during the year 2000, as its own tests had shown that although at times H 2 S could not be detected but a few metres away from the aeration lagoon the results were not always consistent, it employed a further consultant, a Dr D. Hebden, who made recommendations in regard to the period that sludge should be allowed to stand in the clarifier and the salinity of the effluent which, in his opinion, would assist in further restricting the production of H 2 S, and that it has implemented these recommendations over the past few months at a cost of some R300 000,00. The first respondent also alleges that, arising out of a recent discovery that sludge produced by tanneries has a high calorific value due largely to the presence of the fat and hairs removed from the hides during the tanning process, it has since November 2000 made further investigations in regard to the possible incineration of its tannery waste. It states that a Mr Albertyn, of C & M Consulting Engineers, has concluded that a particular incinerator could be used to 2004 JDR 0040 p26 burn its waste, thereby preventing H 2 S being released into the atmosphere altogether. As it currently utilises coal-fired boilers, the hope is to replace them with a single incinerator which would not only prevent the emission of H 2 S but would also alleviate the problems currently experienced of coal dust and omissions from its present boilers. Indeed, the use of an incinerator may well remove the need for the aeration ponds that are currently the source of the problem about which the applicant complains. As the benefits of an incinerator are obviously significant, on 13 August 2001 the first respondent formally applied to the Department of Environmental Affairs and Tourism for a licence to operate one, notwithstanding the anticipated cost of purchasing the equipment being in the vicinity of R5 million. However, although the fourth respondent, to whose department the application has been addressed, has undertaken to deal expeditiously with this application, it is necessary for an environmental impact assessment to be conducted prior to any decision being taken on the issue of a permit and one therefore does not know when it is likely to be installed. Be that as it may, these being motion proceedings the first respondent's allegations in this regard must be accepted for present purposes. Accordingly, not only are the reports upon which the applicant founds its case hearsay in nature, but they have clearly been overtaken by events and one cannot assess the current position in the light of their contents. 2004 JDR 0040 p27 I think one can safely proceed on the basis that H 2 S is still emitted from the first respondent's effluent ponds (an issue to which I shall revert in more detail below), but the

level and concentration of the pollution of the atmosphere has therefore not been reliably established. Moreover, without knowing how successful the recently implemented systems will be in curtailing pollution nor whether the first respondent's application for an incinerator will be granted, I really does not know for how long and at what level the first respondent's processes will continue to be a source of pollution in the Markman township. While I accept that the mere fact that the tannery is situated in an area which has been zoned for noxious industrial use does not mean that the first respondent is not obliged to limit or attempt to eliminate the pollution caused by its processes, the fact that its activities are taking place in an area zoned for that purpose is a material factor to be borne in mind in considering whether drastic relief such as that sought by the applicant is justified. As I have said, the legislature in its wisdom attempted to provide laws and structures through NEMA (and APPA ? even if it does pre-date the Constitution) to afford protection to fundamental rights likely to be adversely affected by pollution. In the exercise of their functions bestowed upon them, in particular by s. 28 of NEMA and s. 9 and 10 of APPA, the second, third and fourth respondents are obliged to act responsibly and to take action to ensure, insofar as they are able, that a person causing pollution does not impinge upon the rights of others. The causes and consequences of pollution are, by their very nature, matters of science, as are the steps which can be taken to combat it and to prevent it occurring. Pollution is therefore a complex, technical and scientific issue which raises questions that can only be properly answered with insight into detailed scientific knowledge and 2004 JDR 0040 p28 information. It is presumably for this reason that certain functionaries, who hopefully are possessed of the necessary scientific background, have been appointed by the legislature in order to weigh up all the relevant information necessary to enable them to take informed decisions on matters of scientific import, including the issue of a certificate for a scheduled process and the conditions which should apply thereto. Indeed the legislature in s.6(3) of APPA prescribes the third respondent to be a person: ....... who (is) technically qualified to exercise control over atmospheric pollution by virtue of (his) academic training in the natural sciences or engineering and (his) practical experience in industry together with a knowledge of the problems concerning atmospheric pollution related thereto. These functionaries are pre-eminently the persons who should take the decision which the applicant has now called upon this Court to make viz. whether the first respondent should be obliged to stop its operations. Without it being shown that the functionaries concerned have not exercised the discretion vested in them by the legislature reasonably and properly, this Court would probably not be prepared to interfere by granting an order effectively usurping their powers and functions. What must further be taken into account is the fact that the grant of such relief by this Court will preclude the first respondent from an "appeal" under s. 13 of APPA (which is really a re-hearing) which would be available should the same decision be taken by the third respondent.

What the papers do show is that, albeit initially somewhat begrudgingly, the first respondent has now entered into negotiations with the third respondent, particularly in regard to the conditions under which it should be permitted to continue its tanning operations. I must also accept that the first respondent has recently implemented substantial changes to its method of treating its effluent, changes which it alleges 2004 JDR 0040 p29 has led to a substantial reduction in the H 2 S emissions from its property ? an allegation which is not on the papers been shown to be false. Accordingly, taking all the above considerations in mind, and while I accept that the first respondent's tannery probably produces H 2 S, as I have no clarity on how severe the pollution problem is or to what extent it is permanent, I cannot find that the third respondent's decision not to direct the first respondent to cease its operations should be overridden, notwithstanding the fact that the third respondent clearly had not met the conditions which the third respondent had laid down from time to time. I have therefore not been persuaded that "appropriate relief' as envisaged by s. 32 of NEMA would, in the present case, constitute an order as envisaged in prayers 1 and 3 of the draft order i.e. an order effectively shutting down the first respondent's tanning processes. That brings me then to consider prayer 2 of the draft order, in which the applicant seeks an order obliging the fourth respondent to direct the first respondent to prepare what may be termed an environmental impact assessment report by investigating, evaluating and assessing the impact of the gases which are emitted from the tannery. Although only raised in written argument filed after the hearing, it is convenient at the outset to consider a submission made by the first respondent in regard to this issue flowing from the decision of Davis J of 20 June 2001 in the matter of Silvermine Valley Coalition v Sybrandt van der Spuy Boerderye en Andere 2001 (thus far only available at JDR 0495). One of the respondents in that matter was the lessee of certain property upon which it commenced to establish a vineyard at a site which had 2004 JDR 0040 p30 previously been quarried for gravel. It also built a dam on an adjacent property in order to provide water for its vineyard. The applicant thereafter brought an application, seeking an order directing the respondent to commission a full environmental impact assessment under the regulations issued under s. 21 of the Environmental Conservation Act 73 of 1989 ("ECA"), alternatively, in terms of the provisions of s. 24 of NEMA. After having analysed the legislative framework in issue in that case, Davis J concluded that an environmental impact assessment fitted into a scheme set up to ensure that official approval is granted before certain land can be put to a specific use. On the strength of this finding, the first respondent's counsel submitted that an environmental impact assessment is an instrument carefully crafted for the assessment of whether to authorise an activity prior to it being carried, and that it is entirely unsuited to

considering the legitimacy or otherwise of a complaint after authorisation has been granted and where the enterprise in question is already in operation. Accepting, for present purposes, the correctness of the conclusion reached by Davis J in the Silvermine case, that matter is clearly distinguishable from the present. There the court was faced with an application to compel ex post facto compliance with s. 22 of ECA or s. 24 of NEMA. Both those sections specifically state that activities which may have an effect upon the environment can only be authorized once an environmental impact report has been considered. The present case, however, involves s. 28 (4) of NEMA which requires the fourth respondent to direct a person who fails to take the measures required under sub-section 28 (1) to, inter 2004 JDR 0040 p31 alia, investigate, evaluate and assess the impact of specific activities and report thereon. In turn, s. 28 (1) applies to a person who "causes, has caused or may cause significant pollution or degradation of the environment" . Accordingly, the fourth respondent is entitled to call upon a person who is causing or who has caused significant pollution or degradation of the environment, to investigate, evaluate and assess the impact of his activities and to report thereon. An environmental impact assessment under s. 28 may therefore be required to prevent pollution continuing or recurring, and is not designed solely to enable prior assessment for authorisation to be granted. In my view there is therefore no merit in the first respondent's submission on this issue and indeed, the fourth respondent has conceded that the fact that the first respondent is already about its activities is no reason to debar an order under s. 28 (12). Turning now to the circumstances in which an order under s. 28 (12) can be granted, the first and fourth respondents argued that the applicant had failed to establish it had complied with certain substantive and procedural requirements which were necessary for an order to be granted. Dealing firstly with the question of the substantive requirements, it was contended that since a directive under s. 28(4) can only be given where there has been a contravention of s. 28(1), an application under s. 28(12) for an order directing the fourth respondent to take any of the steps listed in s.28 (4) can only be granted if the first respondent has been shown to have contravened s. 28(1). I did not understand Mr Eksteen to dispute this on behalf of the applicant. I therefore turn to consider the first and fourth respondents' further submission that as the applicant 2004 JDR 0040 p32 has failed to show that the first respondent's activities are presently causing "significant pollution or degradation of the environment", it has failed to establish such a breach of s. 28(1). I do not think there is any merit in the first respondent's contentions in regard to this issue, and I also do not think it is necessary to analyse all the evidence relevant thereto in any detail. It appears to be common cause that there is, to some extent, a degree of H 2 S

pollution emanating from the tannery. While I accept it must be shown that this pollution is "significant" in order for s. 28 (1) to be of application, the assessment of what is significant involves, in my view, a considerable measure of subjective import. In any event, in the light of the constitutional right a person has to an environment conducive to health and well-being, I agree with the view expressed in Glazewski Environmental Law in South Africa at 5.2.8.2 that the threshold level of significance will not be particularly high. Bearing that in mind, no matter what the precise level of pollution may currently be, it is clear from a conspectus of the evidence as a whole, including the first respondent's own papers and the reports attached thereto, that there has been a pollution of the environment (in the sense envisaged by the definition of "pollution" in NEMA) at a level which must be regarded as "significant". The first respondent itself, albeit while denying that it is substantial, concedes pollution to the extent normally associated with a tannery. As I have already mentioned, immediately before this application was launched the first respondent conceded that it was unable to comply with the third respondent's requirements relating to its DO and MLSS levels, the two components crucial to the formation of H 2 S. If one bears in 2004 JDR 0040 p33 mind the undisputed evidence that even the most minute concentration of H 2 S in the atmosphere is detected by the human nose as a stink similar to rotten eggs, I am satisfied on a balance of probabilities that the H 2 S generated by the first respondent's processes would regularly have been detectable to the persons working nearby on the premises of the applicant, as the latter alleges. This is confirmed by the deponent to the fourth respondent's answering affidavit, one Scarr, who states that he has visited the tannery and that the smell is extremely offensive. One should not be obliged to work in an environment of stench and, in my view, to be in an environment contaminated by H 2 S is adverse to one's "well-being". I am therefore satisfied that the activities of the first respondent have caused "pollution" as defined in NEMA. By a similar process of reasoning, I am also satisfied that notwithstanding the steps taken by the first respondent, such pollution was continuing when this application was launched. After all, the first respondent would not have been in the process of contemplating the purchase of an incinerator, at great expense, if it was not necessary to do away with H 2 S pollution of the atmosphere. It is also apparent that the first respondent's manager, Howard, who appears on the papers to something of a fractious individual (at least insofar as his written responses to complaints are concerned) only somewhat begrudgingly embarked upon steps to combat pollution and, notwithstanding the third respondent's directives of 4 April and 25 June 2001, appears to have adopted the standpoint that such directives were unreasonable, despite the first respondent having failed to appeal against them. As it is clear that further steps are available which may further reduce 2004 JDR 0040 p34

the level of pollution, I am also of the view that the applicant has shown that the first respondent failed to take measures required under s. 28 (1) to minimise the significant pollution it was causing or to prevent such pollution from occurring, continuing or recurring. In any event, the first respondent's admitted failure to comply with the directives of 4 April and 29 June 2001 probably also amounted to an action constituting a breach of s. 28 (1) as read with s. 28 (4) (b), (c) and (d). In all the circumstances, I am satisfied that the first respondent has been shown to have breached s. 28(1) and that the substantial requirements for relief to be granted under s. 28 (12) have therefore been fulfilled. Accordingly, I turn to consider the procedural prerequisites that have to be satisfied before a court can grant relief under s. 28 (12), requirements which the respondents argued the applicant had failed to meet. The respondents' argument on this issue was founded upon the requirements in s. 28 (12) that thirty days notice had to be given to the relevant authority ? in casu, the fourth respondent ? who must have failed to inform the applicant that he has directed a person contemplated in s. 28 (8) ? in casu the first respondent ? to take one of the steps in s. 28 (4). Dealing with the first requirement, on 2 February 2001 the applicant's attorney wrote to the fourth respondent (a copy of the letter being attached to the founding affidavit as annexure PIE14) setting out the complaint about the pollution caused by the first respondent's tannery, and specifically stating that the fourth respondent was being given notice under s. 28(12) as ".... the competent authority to take all such appropriate 2004 JDR 0040 p35 steps as may be required to bring about an immediate cessation to the pollution and odour problem" . He went on to warn that should the fourth respondent fail to inform the applicant within 30 days of the steps he intended taking, proceedings would be launched for the appropriate relief. For reasons best known to himself, the fourth respondent did not depose to an affidavit in these proceedings but authorised an assistant director in his department, Scarr, to do so on his behalf. The fourth respondent, and not Scarr, is the functionary referred to in s. 28 (12) and, in my view, it was the fourth respondent, and not Scarr (who cannot perform the functions entrusted by the legislature to the fourth respondent), who therefore should have deposed to the affidavit in question. Be that as it may, Scarr states that the identification, analysis and resolution of problems associated with the production of noxious and offensive gases and resulting air pollution is a specialist field for which specialised training and equipment is required. Accordingly, as the department did not employ any person having the requisite knowledge or equipment, and as it has no powers under APPA which is the domain of the third respondent, the fourth respondent came to the conclusion that any complaints about the first respondent's operations at the tannery were best dealt with by the third respondent.

This appears to have prompted the fourth respondent to reply to the applicant's attorney on 7 March 2001, stating that he did not believe that he was in fact the competent authority (a reply which, although stated by Scarr to be annexure "NGS2" to his affidavit, was not so marked). In any event, presumably as a result of his view that he was not the appropriate functionary, the fourth respondent not only failed to direct the first respondent take any of the steps envisaged in 2004 JDR 0040 p36 s. 28(4) but, of course, failed to inform the applicant in writing that he had directed the first respondent to take such steps. The fourth respondent persisted in his contention that he was not the appropriate authority up to the bitter end. Indeed, in supplementary submissions filed on his behalf of the after the hearing, it was submitted that it would be inappropriate for this Court to direct an environmental impact assessment to be conducted under his auspices as, inter alia: "Third Respondent is the appropriate officer to deal with the complaints of the Applicant, both in the sense that Third Respondent is duly empowered by the provisions of APPA and in the sense that Third Respondent is possessed of the necessary technical training, experience and equipment required for the highly technical and intricate process of the identification and monitoring of air pollution." In my view, this amounts to a groundless plea ad miserecordiam on the part of the fourth respondent. In terms of 28 (4) he is empowered to direct a person who fails to take measures required under 28 (1) to take various steps, and he is the person against whom an order can be granted under 28 (12) should he fail to inform a person who gives him notice that he has issued a directive under s. 28 (4). Moreover, should a person fail to comply, either adequately or at all, with a directive made by him under s. 28 (4), the fourth respondent may take reasonable measures to remedy the situation in terms of s. 28 (7). To now come to court and plead that he lacks the necessary expertise to carry out the functions which the legislature has specifically entrusted to him, is really no answer. It is not for the applicant to question the advisability of appointing the fourth respondent as the functionary entrusted with certain obligations. That decision was taken by the legislature and, like it or not, the fourth respondent is called upon to discharge those functions. 2004 JDR 0040 p37 It was argued that the Department of Environmental Affairs and Tourism had eventually sent a directive to the applicant on 4 April 2001, and that granting the relief sought would, in effect, amount to ordering something which has already been done. However, the notice of 4 April 2001 was the directive issued by Pillay who, although a member of the department, was acting on behalf of the third respondent at the time. It therefore cannot be construed as any action taken by the fourth respondent who, indeed, may not even have been aware of the contents of the directive. It was argued by the fourth respondent that the question of pollution is an area which is

the domain of the third respondent, that its attitude towards the difficulties created by the first respondent has been one of co-operative governance with due regard to the existence of Third Respondent and the powers afforded to the third respondent by the provisions of APPA, and that he had at all material times adopted a constructive and helpful attitude towards the applicant in meeting its complaints. That may well be so, but it also begs the question. The legislature has entrusted certain obligations upon the fourth respondent under s. 28, obligations which are not met by "co-operative governance". What the fourth respondent was obliged to do was to carry out the obligations imposed upon him under s. 28 (4). It is not suggested that he did. In the result, there is no obstacle to the applicant applying for an order under the latter subsection directing the respondent to take any of the steps listed in s. 28 (4). In considering an application under s. 28 (12), this Court is obliged by s. 28 (13) to take into account the factors set out in s. 28 (5). One of the factors set out in s. 28 (5) 2004 JDR 0040 p38 are the principles set out in s. 28 (2) which oblige a person in control of land or premises upon which an activity or process is undertaken to take reasonable measures where his activities cause, has caused or are likely to cause significant pollution or degradation to the environment. For the reasons already mentioned, the first respondent is clearly such a person and his activities are those envisaged by this subsection. Another of the factors to which this Court must have regard is the desirability of the state fulfilling its role as custodian holding the environment in public trust for the people ? see s. 28 (5) (e) ? and there seems to me to be no reason for the fourth respondent, the state functionary nominated in the legislation, not to do all he reasonably can be expected to do in order to discharge the State's obligation in that regard. It was also argued on behalf of the fourth respondent that the first respondent will be required to submit an environmental impact assessment pursuant to its application for a permit to operate an incinerator, that is not unreasonable to expect it to do so speedily, and that there would therefore be no point served in granting the relief sought against the fourth respondent as the first respondent is already having an environmental impact assessment carried out. In my view this, too, begs the question. The relief sought is far wider than an environmental impact assessment relating to the use of an incinerator. What is sought is an investigation, evaluation and assessment of the impact of the noxious gases emitted from the first respondent's tannery, and a directive that the fourth 2004 JDR 0040 p39 respondent, who thus far has taken no steps under s. 28 (4), should take whatever steps may be necessary in the light of the findings of the investigation. The fact that the first respondent may already be arranging an environmental impact assessment to facilitate its application for an incinerator is therefore no reason to decline relief under s. 28(12).

The problems at the first respondent's tannery are long standing, and persist despite the efforts taken thus far to curtail them. Accordingly, in the light of the relevant facts and circumstances mentioned above, this seems to me to clearly be a matter in which the fourth respondent should be ordered to direct the first respondent to investigate, evaluate and assess the impact of its activities and to report thereon. That brings me to consider the terms of the relief which should be granted against the fourth respondent. In paragraph 2 of its draft, the applicant seeks an order compelling him to direct the first respondent to investigate, evaluate and assess the impact of gases from its tannery "in accordance with the environmental impact assessment process described in Government Notice R1183 of 5 September 1997" . I do not intend to analyse these regulations for present purposes. On a reading thereof, it seems to me to be clear that the processes they prescribe are designed to consider whether a particular activity, which might adversely affect the environment, should be authorised and allowed to commence. However, they do not appear to me to be appropriate where the activity complained of is already in existence and where the object of the investigation is to identify and, hopefully, overcome an already existing problem. I therefore do not think that the order should incorporate reference to the 2004 JDR 0040 p40 regulations promulgated under ECA, and that it is sufficient to direct the investigation to be in terms of s. 28 (4) (a) of NEMA. That brings me to the question of costs. It is probably convenient, at the outset, to deal with the wasted costs of the postponement of the hearing which occurred on 27 September 2001 which were reserved. This fact seems to have escaped the parties attention when the matter was ultimately argued before me and it was only when I commenced preparing this judgment that it came to my attention. Consequently, I drew the parties' attention to their failure to address me on the issue and enquired what they felt should be done. This led to a flurry of written argument on the issue being submitted by the parties, attaching fairly voluminous correspondence. I am uncertain about the admissibility of these documents but, having regard to the written submissions so filed, certain facts can be regarded as common cause. Taking those facts into account, it seems to me that although the matter had initially been brought as one of urgency, it was not ripe for hearing on 27 September 2001. That being so, the appropriate order would be to direct the wasted costs occasioned by the postponement on that day to be costs in the cause. I turn now to deal with the costs of the application. The applicant has obtained meaningful relief against the fourth respondent, and there seems to me to be no reason why, on general principles, the latter should not be ordered to pay the applicant's costs. 2004 JDR 0040 p41 Turning to the costs of the first respondent, it is, of course, a material consideration that no direct relief will be granted against it. However s. 32 (2) of NEMA reads as follows:

"32 (2) A court may decide not to award costs against a person who, or group of persons which, fails to secure the relief sought in respect of any breach or threatened breach of any provision including a principle of this Act or any other statutory provision concerned with the protection of the environment or the use of natural resources if the court is of the opinion that the person or group of persons acted reasonably out of a concern for the public interest or in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought." It is also necessary to bear in mind that s. 28 (12), under which relief is to be granted against the fourth respondent, provides that the provisions of s. 32 (2) shall apply to proceedings brought under it "...with the necessary changes" . It is clear from these provisions that in order to avoid persons aggrieved by pollution being discouraged from bringing proceedings under s. 28 (12) or s. 32 (1), the legislature sought to ameliorate the general principle that an unsuccessful party should pay the costs of his successful opponent. Relying upon these provisions, Mr Eksteen argued that even should no direct relief is granted against the first respondent, the applicant should not be directed to pay its costs as the applicant had acted reasonably out of a concern for the public interest or in protecting the environment and that it had made due efforts to use other means reasonably available for obtaining the relief sought. Counsel for the first respondent, however, argued that s. 32 (2) should not be taken into account and that the ordinary should apply as the applicant had been motivated by its own interests rather than those of any other person and could not suggest that it was unaware of 2004 JDR 0040 p42 the steps the first respondent had taken to combat pollution, particularly after it had received the first respondent's answering papers. In the light of the view I take of the matter, it is unnecessary for me to reach any decision on the correctness or otherwise of these submissions. In my opinion, a material consideration to be taken into account is the fact that the first respondent did not only oppose the relief sought directly against it in prayer 3 of the draft notice but strenuously opposed the relief which I have decided should be granted in favour of the applicant, a fact which in itself justifies a costs order being granted against it. Indeed, so vigorous was its opposition to the relief sought that the other respondents effectively rode on the back of its argument. Moreover, and most importantly, although the order I intend to make is granted directly against the fourth respondent, the effect thereof is an indirect order against the first respondent as, in terms thereof, the fourth respondent will be obliged to direct the first respondent to take certain steps (which explains the first respondent's strenuous opposition to such an order). I have therefore concluded that the first respondent should also be order to pay the applicant's costs. Its liability will, of course, be joint and several with that of the fourth respondent. Turning now to the second respondent, applicant's counsel conceded at the outset that no

case had been made out for relief against him. That concession was correctly made and, in truth, the second respondent should never have been a party to these proceedings. The applicant however persisted in seeking relief against him up until the first morning of the hearing before me on 11 October 2001, and I am 2004 JDR 0040 p43 therefore of the view that the applicant should be ordered to pay the second respondent's costs up to that time. Finally I turn to deal with the costs of the third respondent. Although he has successfully resisted an order being granted against him, it is important to bear in mind that he had allowed the first respondent to continue operating its tannery despite repeated breaches of its conditions of registration. In the light of this, it is not surprising that the applicant turned to this Court to seek an order, the effect of which would have been to oblige the third respondent to enforce the conditions which he had laid down in respect of the first respondent's processes. Bearing the underlying principle of s. 32 (2) in mind, and as the applicant's efforts to use other means reasonably available to obtain relief had come to naught, I am of the view that the applicant should not pay the third respondent's costs. I therefore intend to make no order as to the third respondent's costs. In the light of all the aforegoing, I order as follows: 1. That the fourth respondent is to direct the first respondent under s. 28 (4) of the National Environmental Management Act No.107 of 1998 to investigate, evaluate and assess the impact of gases emitted from the first respondent's tannery at erf 516 Markman Township, Port Elizabeth and the effluent treatment plant there situate, to report thereon, and to take such further steps in terms of s. 28 (4) (b), (c) or (d) as may be necessary in the light of the findings of such investigation, evaluation and assessment so as to ensure that: 2004 JDR 0040 p44 (a) The first respondent consistently complies with the registration certificate issued to it in terms of the Atmospheric Pollution Prevention Act of 1965; (b) The first respondent consistently complies with the provisions of the National Environment Management Act No.107 of 1998. 2. That the first and fourth respondents, jointly and severely, the one paying the other to be absolved, pay the applicant's costs of this application. 3. That the applicant is to pay the costs of the second respondent up to the morning of 11 October 2001. L.E. LEACH JUDGE OF THE HIGH COURT

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