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Criminal Liability With Reference To NEMA (SO4-AC6)
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The environment is the existential right of the man. The issue of environmental liability can be considered from multiple angles, the focus will be directed on criminal and civil liability. The NEMA was influenced by section 24 of the Constitution which makes provisions for the right to an environment that is not harmful to one’s health or well-being; and also to have the environment protected, for the sake of the present generation and the upcoming generation.
Section 24 of the Constitution is the main statutory provision relating to the protection of the environment. It allows the promotion of justifiable economic and social development and imposes a duty to the public to prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of nature.
In South Africa, the duty of care is contained in section 28 of the NEMA, and this duty gives an obligation to everyone who causes, has caused or who is likely to cause significant pollution or degradation to the environment to take reasonable measures to prevent or stop such harm to the environment, in the event that such a person fails to comply with the provisions of section 28 of the NEMA, the Act imposes liability on such person which may be in form of civil and criminal penalties where in the environmental perpetrator has to pay a certain amount of money to remedy the harm done to the protection of the environment is achieved in this way. However, there is a challenge when it comes to the enforcement of the environmental duty of care as there are certain individuals with the financial means to pay off such penalties and continue to harm the environment.
This however defeats the whole purpose of the duty of care as contained in NEMA. Therefore, measures need to be taken in order to ensure maximum compliance with the duty. These measures may include the increment of the fines to environmental perpetrators and or holding the perpetrators criminally accountable.