South Africa
Air pollution, Prevention, Environmental Impact Assessments, Remedies, Property, Inspections, Constitutional, Standing, Admissibility, Evidence
The applicant in the present case was the owner of certain immovable property adjacent to that of Cape Produce Company Proprietary Limited ('the first respondent'). The first respondent carried on business as a semi-processing tannery. This tanning process produced a number of chemical waste products, in particular the 'malodorous hydrogen sulphide process' as envisaged by the second schedule to the Atmospheric Pollution Prevention Act, 45 of 1965. The applicant alleged that noxious gases created by the tannery were discharged in 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 were prejudicial to the health and well-being of those present on its premises and other inhabitants of Port Elizabeth. The applicant claimed that the respondents, which included, amongst others, the Director-General: Environmental Affairs and Tourism and the Chief Air Pollution Control Officer had failed, neglected or refused to take such reasonable steps as were required to bring the pollution to an end, notwithstanding its attempts to persuade them to do so. The first respondent was registered in terms of the Atmospheric Pollution Prevention Act. On 2 February 2001 the applicant gave notice under the National Environmental Management Act, 107 of 1998 ('NEMA') that the pollution emanating from the tannery had become intolerable. After an official site visit a directive was issued by the authorities to the first respondent. The first respondent was not able to comply with the directives given. The applicant then turned to the court for relief. An investigation, evaluation and assessment of the impact of the noxious gas emitted from the tannery, and a directive that the respondent should take whatever steps may be necessary in the light of the findings of the investigation, evaluation and assessment was sought by the applicant. The court held that it was clear from the evidence as a whole that there had been pollution of the environment (in the sense envisaged by the definition of 'pollution' in NEMA) at a level which had to be regarded as 'significant'. It was held that hydrogen sulphide was adverse to one's 'well-being'. The court further held that it was of the view that the applicant had shown that the first respondent failed to take measures required under NEMA to minimise the significant pollution it was causing or to prevent such pollution from occurring, continuing or recurring. In the circumstances, the judge was satisfied that the first respondent had been shown to have breached the provisions of NEMA and in light of the relevant facts and circumstances, the court held that the first respondent should be ordered to investigate, evaluate and assess the impact of its activities and to report thereon. The application was accordingly granted.