BAREKI & ANOTHER V GENCOR LTD & OTHERS 2006 (1) SA 432 (T)

This fact sheet analyzes the case of Bareki & Another v Gencor Ltd & Others 2006 (1) SA 432 (T), focusing on the retrospective application of the National Environmental Management Act 107 of 1998 (NEMA) and the continuity of environmental rehabilitation obligations under repealed mining legislation.

• The court ruled that section 28 of the National Environmental Management Act 107 of 1998 (NEMA) did not apply retrospectively to pollution occurring before its commencement on 29 January 1999. This decision was based on a common law presumption against retrospectivity and the finding that the duty to take corrective measures under s 28(1) and (2) created strict or possibly absolute liability, meaning fault (negligence or intention) was not required.
• Legislative amendments to NEMA via Act 14 of 2009 have largely rendered the Bareki ratio obsolete. A new section 28(1A) explicitly states that the duty to address significant pollution and degradation applies to events that occurred before NEMA commenced, as well as pollution that arises at a different time from the causing activity or results from changes to pre-existing contamination.
• The case addressed whether rehabilitation obligations under the repealed Mines and Works Act 1957 and its regulations remained enforceable. The plaintiffs successfully argued for the continuity of some obligations by citing s 12(2)(c) and (e) of the Interpretation Act 1957, though the document notes the court's reasoning on s 12(c) was problematic and not clearly definitive.
• The court rejected a 'continuity by content' argument, which suggested that obligations remained applicable because they were similar across different regulatory regimes. The court held that because the plaintiffs had averred the regulations were repealed and failed to plead continuity under the Interpretation Act 1957, those regulations had no force of law.
• The litigation involved the Bute Asbestos Mine, where asbestos mining occurred between 1976 and 1981. Plaintiffs alleged that Gefco and Gencor caused significant pollution through asbestos fibres, leaving behind asbestos dumps, a mill, a beneficiation plant, and a haul road, creating health risks and environmental threats. Rehabilitation costs were estimated by plaintiffs at R64 million, while defendants estimated them between R18 and R24 million.
• The document highlights that technical inaccuracies in pleadings can negatively impact environmental litigation. In this case, the court's decision was based on technical inconsistencies in at least three instances, specifically regarding the linkage of s 49(b) to the duties in s 28(1) and (2), and the handling of the third and fourth claims.

APA

Centre for Environmental Rights (n.d.). BAREKI & ANOTHER V GENCOR LTD & OTHERS 2006 (1) SA 432 (T). https://cer.org.za/wp-content/uploads/2011/12/Bareki-v-Gencor.pdf?x21779

Chicago

Centre for Environmental Rights. BAREKI & ANOTHER V GENCOR LTD & OTHERS 2006 (1) SA 432 (T). n.d. https://cer.org.za/wp-content/uploads/2011/12/Bareki-v-Gencor.pdf?x21779.

Wikipedia

{{cite report |author=Centre for Environmental Rights |title=BAREKI & ANOTHER V GENCOR LTD & OTHERS 2006 (1) SA 432 (T) |url=https://cer.org.za/wp-content/uploads/2011/12/Bareki-v-Gencor.pdf?x21779 |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centreforenvironmentalrightsndbareki, author = {{Centre for Environmental Rights}}, title = {{BAREKI \& ANOTHER V GENCOR LTD \& OTHERS 2006 (1) SA 432 (T)}}, institution = {Centre for Environmental Rights}, url = {https://cer.org.za/wp-content/uploads/2011/12/Bareki-v-Gencor.pdf?x21779}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }