DEFINING ‘THE ENVIRONMENT’ AND ‘POLLUTION’

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The ECA General Policy

In the General Policy issued in terms of section 2(1) of the ECA, 213 ‘[e]very inhabitant of the Republic of South Africa has the right to live, work and relax in a safe, productive, healthy and aesthetically and culturally acceptable environment and therefore also has a personal responsibility to respect the same right of his fellowman. Every generation has an obligation to act as a trustee of its natural environment and cultural heritage in the interest of succeeding generations’.
The General Policy of ECA under its heading ‘Pollution Control’ broadly provides that pollution should be prevented by the formulation of a comprehensive effective policy, by the enactment of legislation, by establishing and maintaining certain specified norms and standards, by applying the best practicable environmental options based on the most recent and suitable technology, by fostering positive attitudes among people and by co-operating internationally.

Duty to give notice of claim

Some of these policies contain a condition that could be interpreted either as a contractual duty or a suspensive condition as known in our law, known as a condition precedent in UK law, that requires the policyholder to give notice of a claim to the insurer within contractually specified time limits.41 Where the policyholder gives the notice outside these limits, this will only preclude his claim where the insurer can show that he suffered prejudice as a result of the delay.
The notice must be given within the agreed time or in some cases within a more vaguely described ‘reasonable time’.42 The effect of non-compliance or breach of this clause depends on the purpose and wording of the clause. It effect is usually that the insurer faces no liability unless the insured meets the requirements.
Where the policy does not expressly require such a notice, the insured has no obligation in law to give any notice to his insurer prior to his claim. The policy could require the insured to comply with an obligation to notify another entity such as a state department or other authority of the occurrence that caused damage or harm. This would be in accordance with, for example, statutory notice procedures, or obligations to give notice imposed by permits or licences to operate facilities.

Problems regarding the practical application of the trigger

This trigger can also hold insurers liable for past sins, where manifestation only occurs long after the polluting incident occurred. Most of these ‘claims-made’ policies are therefore linked to fixed retroactive dates to prevent infinite liability. The effect is that where the cause for a claim exists before a specified date, a claim may not be lodged in terms of the ‘claims-made’ policy that offers cover for claims made after that date. An example of such a policy is the formula known as ‘claims-made plus three years’.53 The effect of this policy is that it limits the cover afforded severely.
The advantages from the insurer’s perspective, therefore, include a more predictable risk as the time of cover is finite. The process of risk differentiation and adaptation of premiums is more precise. Although the risk of the insurer inthe short run, for the time during which the policy is in place, is greater, there is no liability for potential future claims.

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CHAPTER 1: INTRODUCTION
1.1 Background
1.2 Exposition and Purpose of Study
1.3 Methodology
1.4 Delimitation of Scope
CHAPTER 2: DEFINING ‘THE ENVIRONMENT’ AND ‘POLLUTION’
2.1 INTRODUCTION
2.2 DEFINING ‘THE ENVIRONMENT’ AND RELATED CONCEPTS
2.2.1 General
2.2.2 Dictionaries
2.2.2.1 The Concise Oxford Dictionary
2.2.2.2 Black’s Law Dictionary
2.2.2.3 Webster’s Dictionar
2.2.2.4 http://www.wikipedia.com
2.2.3 National Statutory Definitions
2.2.3.1 General introduction
2.2.3.2 The Constitution of the Republic of South Africa 1996
2.2.3.2.1 Section 24: the right to the environment
2.2.3.2.2 Scope of terminology used in section 24
2.2.3.2.3 Interpretation
2.2.3.3 National Environmental Management Act 107 of 1998
2.2.3.3.1 Terminology and Process preceding NEMA
2.2.3.3.2 Definition in NEMA
2.2.3.3.3 Legislation enacted in terms of NEMA
2.2.3.4 Environment Conservation Act 73 of 1989
2.2.3.4.1 Definition in the ECA
2.2.3.4.2 Extended scope of the ECA
2.2.3.5 Development Facilitation Act 67 of 1995
2.2.3.6 Genetically Modified Organisms Act 15 of 1997
2.2.3.7 Marine Pollution (Control and Civil Liability) Act 6 of 1981
2.2.3.8 Maritime Zones Act 15 of 1994
2.2.3.9 Mineral and Petroleum Resources Development Act 28 of 2002
2.2.3.10 National Environmental Management: Air Quality Act 39 of 2004
2.2.3.11 National Forests Act 84 of 1998
2.2.3.12 National Heritage Resources Act 25 of 1999
2.2.3.13 Wreck and Salvage Act 94 of 1996
2.2.4 Related Concepts
2.2.5 Other Descriptions
2.3 DEFINING ‘POLLUTION’ AND RELATED CONCEPTS
2.4 CONCLUSION AND RECOMMENDATIONS
CHAPTER 3: STATUTORY LIABILITY FOR DAMAGE CAUSED BY POLLUTION
3.1 INTRODUCTION
3.2 THE CONSTITUTION
3.3 INTERNATIONAL LAW
3.4 SOUTH AFRICAN STATUTORY LIABILITY
3.5 REMEDIES FOR BREACH OF STATUTORY DUTY
3.6 CONCLUSION AND RECOMMENDATIONS
CHAPTER 4: CIVIL LIABILITY
4.1 INTRODUCTION
4.2 DELICTUAL LIABILITY
4.3 CONTRACTUAL LIABILITY
4.4 NEGOTIORUM GESTIO
4.5 CONCLUSION AND RECOMMENDATIONS .
CHAPTER 5: ENVIRONMENTAL INSURANCE COVER
CHAPTER 6: UNIVERSAL KEY ISSUES IN POLLUTION DAMAGE INSURANCE COVERAGE
CHAPTER 7: EXCURSUS: THE POSITION IN THE EUROPEAN UNION AND IN THE USA
CHAPTER 8: SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS