In mid-July, South Africans had to fight for their constitutional democracy. As the dus settles, we are fighting for the openness of that democracy. The intent behind the 1996 Constitution was not only to establish democratic self-rule, but to ensure an ‘open and democratic’ society, based on the values of human dignity, equality, and freedom.
‘We have a strong pungent smell and [are] inhaling this. My 2 [dogs] have vomited up white/grey substance for the past few days and my …[child] was very ill last night. We have all had sore throats and itchy eyes’. To date neither the company, the landlord nor eThekwini, KwaZulu-Natal or national authorities have released the full inventory of chemicals stored at the warehouse. Nor have they put out substantive information on the nature of the risks that underlie the closure of Durban’s beaches north of the uMgeni estuary.
South African law requires this. Section 30 of the National Environmental Management Act , 1998 prescribes notification obligations when there is an ‘unexpected, sudden and uncontrolled release of a hazardous substance’ that may cause significant harm to the environment, human life or property from an incident like a fire or explosion.
In the event of uncertainty around risks, the precautionary principle applies. The precautionary principle is foundational in South African environmental law. The principle is that lack of full scientific certainty cannot be used to justify delayed action. A ‘risk-averse and cautious’ approach must be applied. Even if the firm and the government are unclear about what was actually released into the environment, the precautionary principle dictates erring on the side of caution.
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