5) The meaning of the phrase “ wellbeing “ was considered in a South African case
HTF Developers (pty) Ltd v The Minister of Environmental Affairs and Tourism
2006 (5) SA 512 (T) Murphy J suggested that the term is
“open ended and manifestly … incapable of precise
definition. Nevertheless it is critically important in that it
defines for the environmental authorities the constitutional
objectives of their tasks”
6) The directive principle as provided by section 73 (1) (b) of the environmental
right, creates a right imposing a constitutional imperative on the state to secure
the environmental right by “reasonable legislation and other measures”.
7) It is paramount to note that the environmental right is not absolute. Section 73
(2) provides that;
“the state must take reasonable legislative and other
measures, within the limits of the resources available to it,
to achieve the progressive realization of the rights …”
8) It is thus conceivable that the limitation clause could be used to justify certain
actions or inactions detrimental to the environment on the basis that such
actions or inactions constitute “reasonable and justifiable” limitation of the
environmental right.
6.2. Environmental Management Act
1) The legislative framework for management and enforcement of environmental
law is embedded mainly in the Environmental Management Act.
2) The general principles of environmental management are provided in section
4 of the Act. Of particular relevance to this case is section 4(2) which provides
that;
“ any person who causes pollution or environmental
degradation shall meet the cost of remedying such
pollution or degradation”
3) The functions of the Agency are also provided in section 5 of the Act. Of
particular relevance is the Agency’s duty to impose penalties and to ensure
that persons or institutions that are responsible for causing environmental harm
will meet the cost of remedying. It provides that;
“(g) any person who causes pollution or environmental
degradation shall meet the cost of remedying such
pollution or environmental degradation and any resultant
adverse health effects, as well as the cost of preventing,
controlling or minimizing further pollution, environmental
damage or adverse health effects;
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