-

Energize Environmental pollution has far-reaching consequences
- Advertisment -

Environmental pollution has far-reaching consequences

- Advertisment -

by Garyn Rapson and Merlita Kennedy, Webber Wentzel  –  

The number of class actions stemming from environmental pollution events is rising internationally, and especially in Africa and South Africa. These events need not be current. South African law also covers historic pollution or pollution on land that a company owns or controls. Even if the company was not the perpetrator, it has a duty to address it:

  • Under Section 28 of the National Environmental Management Act
  • Under Section 19 of the National Water Act.

Addressing this pollution is highly complex and requires technical expertise. However, there is a risk that remedial measures could incur liability in the event of a subsequent class action.

We advise companies to:

  • Appoint these experts under legal privilege
  • Ensure all draft reports are written under legal privilege
  • Submit reports to government only in final form.

There should be a separate technical team for potential future litigation because the team involved in the clean-up will be conflicted. It is necessary to have a co-ordinated action plan, with technical and communications teams working together. There must be extremely strict document management procedures (including notes and boardroom minutes) and timeline management.

Ignoring these steps could result in administrative directives/compliance notices or even criminal liability, up to board level. Class actions, multi-party actions or representative actions allow several individuals bringing an action against the same party to combine in one lawsuit.

It is a two-stage process: certification, where a group approaches a court to be certified as a class, followed by action. South Africa’s class actions currently follow common law but given the increase in frequency there may be developments in legislation.

The overarching consideration in certifying a group is to serve the interests of justice. Another important factor is that the main action must be try-able. International examples of environmental class actions include Lungowe vs. Vedanta Resources; the Bodo community and others vs. Shell Petroleum of Nigeria; Arica victims KB vs. Boliden Mineral AB.

Local examples of general class actions include De Bruyn vs Steinhoff International; and Nkala and others vs. Harmony Gold Mining and others (referred to as the silicosis action). Another class action is looming over black lung disease allegedly contracted by coal miners.

South African courts have taken a more liberal approach towards class actions involving members of the public sustaining bodily harm, and a stricter approach in respect of pure economic loss.

Send your comments to rogerl@nowmedia.co.za

LEAVE A REPLY

Please enter your comment!
Please enter your name here

Latest Articles

Environmental pollution has far-reaching consequences

by Garyn Rapson and Merlita Kennedy, Webber Wentzel  -   The number of class actions stemming from environmental pollution events is rising internationally, and especially in...

Adapting to lessons learnt from Covid-19

by Kate Collier and Lizle Louw, Webber Wentzel  -   The mining industry’s response to Covid-19 in helping employees to cope has largely been lauded. Although...

The digital sensor age is here

With the adoption of a ever-growing digital world, Danfoss Industrial Automation has repositioned itself as Danfoss Sensing Solutions, representing the union of application-driven sensor...

Ending 2020 on a high note  

Pan-African renewable power producer company, BioTherm Energy, backed by leading emerging market investor Actis, has announced the official operations of its Excelsior Wind Energy...

The application of blockchain technology in power systems

by David Bowker, convenor of CIGRE WG C5.30  -   Due to the centralised structure of energy systems with large-scale industrial and commercial loads and because...

SA’s “most reliable power station” down to half-power again

Eskom's Koeberg power station, the only nuclear power plant in Africa, which the power utility has often said is its most dependable power station...

“#EnergyEfficiency” will be the hashtag buzzword for 2021

by Emre Goren, Danfoss  -   Energy consumption patterns need to be addressed in earnest, in a bid to ensure that all industries de-carbonise towards...

2020: A year of resolve and resilience through extraordinary upheaval

by Hari Vamadevan, DNV GL  -   With the dramatic impact of the Covid-19 pandemic and the fluctuating price of oil, 2020 has been a difficult...

DERs and the paradox of renewable energy

Staffwriter  -   The electricity sector, it seems, is facing an emerging dichotomy. Although the energy transition promotes the development of distributed generation, based on distributed...

Wind project to supply 460 GWh pa to South Africa’s grid

Enel Green Power’s (EGP’s) Nxuba wind farm, the company’s third wind facility in the Eastern Cape province, is expected to generate 460 GWh of...

Ultra-efficient, eco-friendly water heater with award-winning design

Inverter compressor boosts heating performance and lowers energy consumption while smart features deliver enhanced convenience  -   LG Electronics (LG) will be presenting its advanced, energy-saving...

From DERs to iDERs

by Fereidoon Sioshansi, Menlo Energy  -   As distributed energy resources (DERs) proliferate, they have to be integrated. DERs have emerged as the latest craze...

South Africa’s energy policies: Are changes finally coming?

by Chris Yelland, EE Business Intelligence  -   Energy and electricity policy, planning and regulation in South Africa has been slow and bureaucratic, lacking visionary leadership,...

Why LED lamps are set to replace CFLs

Now Media staffwriter  -   One of the effects of lockdown and working from home has been a greater awareness of domestic issues, such as replacing...

The Expo on Expos: Can a cyber Expo replace the real thing?

Staffwriter  -   I attended my first Expo of 2020 recently. Not an Expo on the power or energy or ITC sectors but an Expo on...
- Advertisement -