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WHY YOU SHOULDN'T THROW CAUTION TO THE WIND
IMPORTANCE OF THE PRECAUTIONARY PRINCIPLE IN ENVIRONMENTAL LAW
The Precautionary Principle is encapsulated in our environmental law under Section 2(4)(a)(vii) of the National Environmental Management Act (NEMA) as follows:
Sustainable development requires the consideration of all relevant factors including the following: that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions.
The principle is based on the theory that it is better to err on the side of caution and prevent environmental harm which may become irreversible, than to proceed with an action where there is uncertainty about the potential impact of a decision or action.
In the Fuel Retailers Case which came before the Constitutional Court, it was held that the precautionary principle was only applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of a proposed development.
In the case of WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others, which came before the Western Cape Division, our courts, for the first time, crafted out a test for the precautionary principle.
In other words, the court attempted to lay down the criteria for application of the Precautionary Principle.
The Precautionary Principle is activated where two conditions are satisfied, namely,
that the proposed activity poses a ‘threat of serious or irreversible environmental damage’ and
the ‘existence of scientific uncertainty as to the environmental damage
The principle finds application among Environmental Assessment Practitioners who are conducting EIAs, as well as government officials tasked with deciding on applications for environmental authorisations - and in fact - any decision which may pose a threat to the environment.
In terms of the principle, these practitioners or officials should err on the side of caution where there in uncertainty regarding environmental impacts, by either refusing to proceed with a development or declining an authorisation for a development, which meets the criteria as set out in the WWF Case.
The precautionary principle is also a key legal tool used by Environmental Lawyers like myself, when drafting and prosecuting appeals against Environmental Authorisations and Water Use Licences, as well as review applications before court.
In this current climate of greenwashing and so called “green technologies“ and “renewable or sustainable energy“, the Precautionary Principle becomes all more relevant - particularly where the technology (and thus its long term impacts) are not clearly understood i.e. there is scientific uncertainty regarding the potential environmental impacts.
Court Cases Cited:
Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others (CCT67/06)  ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007).
WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others (11478/18)  ZAWCHC 127;  4 All SA 889 (WCC); 2019 (2) SA 403 (WCC) (26 September 2018).