A Critical Survey of Domestic Constitutional Provisions Relating to Environmental Protection in...

Citation: 14 Tilburg L. Rev. 298 2007-2008

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A CRITICAL SURVEY OF DOMESTIC CONSTITUTIONAL

PROVISIONS RELATING TO ENVIRONMENTAL PROTECTION

IN SOUTH AFRICA

Louis J. Koti*

Introduction; 1. Domestic Development of the Environmental Right; 2. The Bill of Rihts andthe Environment; 2.1 The Environmental Clause; 2.2 Supplementary R hts; 3. AdditionalConstitutional Provisions; 3. 1 Co-operative Governance; 3.2 Functional Areas, InternationalLaw and Constitutional Institutions; 4. Environmental Legislation and ConstitutionalProtection; 5. Some Observations; Conclusion

Our Constitution, by including environmental rights asfundamentaljustidable human rghts, by

necessary implication requires that environmental considerations be accorded appropriate

recognition and respect in the administrative process in our countgy.

INTRODUCTION

P rior to the enactment of the Constitution of the Republic of South Africa 200

of 1994 (hereafter the Interim Constitution), 2 and the Constitution of the

Republic of South Africa 1996 (hereafter the Constitution), environmental

concerns in South Africa were generally perceived to be white elitist concerns that

were linked to the imposition of the previous government's policies and plans." 3

B. Com, LLB, LLM (cum laude) (PU for CHE), LLD (NWU). Associate Professor, Facultyof Law, North-West University, Potchefstroom Campus, South Africa. This article is basedon a paper presented at the 10th International Conference on Environmental Law: HumanRights and the Environment, Law for a Green Planet Institute, Sao Paulo, July 2006.

Director: Mineral Development, Gauteng Region and Sasol Mining (Pty) Ltd v. Save the VaalEnvironment and Others, 1999 2 SA 709 (SCA), at 719.

2 The provisions of the Interim Constitution are not discussed for the purpose of this article.See for a discussion on the development of the Interim Constitution, JOHN C. MUBANGIZI,THE PROTECTION OF HUMAN RIGHTS IN SOUTH AFRICA: A LEGAL AND PRACTICAL GUIDE

(Lansdowne: Juta, 2004), pp. 52-55.

3 Jan Glazewski, Environmental Justice and the New South African Democratic Legal Order, in JAN

GLAZEWSKI & GRAHAM BRADFIELD (EDS.), ENVIRONMENTAL JUSTICE AND THE LEGAL

PROCESS (Cape Town: Juta, 1999), p. 2. For a general discussion of the provisions of the

298

ENVIRONMENTAL PROTECTION IN SOUTH AFRICA

The previous order furthermore did not provide for a comprehensiveconstitutionally-based corpus of environmental laws. This, however, changeddramatically with the inception of the current constitutional dispensation. Whilstthe existence of an environmental right in South Africa is certainly not unique,4

one must acknowledge the fundamental role that the 1996 Constitution played,and continuous to play in developing environmental law in South Africa. Thejudiciary reiterated this point in a recently judgment where it stated that:

By elevating the environment to a fundamental justiciable humanright, South Africa has irreversibly embarked on a road, which willlead to the goal of attaining a protected environment by anintegrated approach, which takes into consideration, inter alia,socio-economic concerns and principles.5

Constitutional provisions, and more specifically a constitutional environmentalright, have been heralded as important mechanisms in environmental governanceefforts.6 In some instances it has even been described as "no less important thanthe right to life itself."'7 This, at least theoretically, also seems to be the case inSouth Africa.8 This article accordingly reflects on the constitutionalisation ofenvironmental protection in South Africa. For this purpose, the contributioncommences with an exposition on the development of the environmental right.

Interim Constitution that relate directly or indirectly to the environment, see TerryWinstanley, Entrenching Environmental Protection in the New Constitution, 2 SOUTH AFRICAN

JOURNAL OF ENVIRONMENTAL LAW AND POLICY 85 (1995). It should be pointed out herethat South Africa has had five constitutions to date, from as early as 1910. It is howeveronly the Interim and 1996 Constitutions that can be regarded as democratic constitutions.

Approximately 54 States currently have an entrenched environmental right in theirconstitutions. See in this regard Winstanley, supra note 3, pp. 86-87. This contribution doesnot afford consideration to the conceptual debate on human rights and the environmentsince it only focuses on the environmental right and constitutional protection in SouthAfrican law. For a succinct discussion of these issues, see Loretta A. Feris and Dire Tladi,Environmental Rights, in DANIE BRAND & CHRISTOF HEYNS (EDS.), Socio-EcONOMICRIGHTS IN SOUTH AFRICA (Pretoria: Pretoria University Law Press, 2005), pp. 249-255.

s BP Southern Africa (Pty) Ltd v. MEC for Agriculture, Conservation and Land Afairs, 2004 5 SA124 (W).

6 Carl Bruch, Wole Coker and Chris VanArsdale, Breathing Life into Fundamental Principles:Implementing Constitutional Environmental Protections in Africa, 7 SOUTH AFRICAN JOURNAL OF

ENVIRONMENTAL LA\W AND POLICY 21 (2000).

7 Bekele T. Mekete and Jackton B. Ojwang, The Right to a Healthy Environment: Possible JuridicalBases, 3 SOUTH AFRICAN JOURNAL OF ENVIRONMENTAL LAW AND POLICY 155 (1996).

8 For a detailed discussion of the constitutional entrenchment of environmental protectionin African countries, see supra note 6, pp. 21-96.

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TILBURG LAW REVIEW - ENVIRONMENTAL LAW

The most relevant constitutional provisions that relate to the environment are then

discussed, and recommendations and observations are made regarding current and

future developments.

1. DOMESTIC DEVELOPMENT OF THE ENVIRONMENTAL RIGHT

Environmental concerns in the pre-constitutional dispensation in South Africa

were addressed in an insufficient manner.9 Environmental protection during this

period must be considered in the context of the general lack of rule of law and

constitutionalism, the supreme reign of the system of apartheid, parliamentarysovereignty and lack of respect for, and protection of human rights. 10 Rather than

advocating sustainability and an integrated approach to environmental law and

governance, past practices, legislation, and policies were essentially concerned with

the facilitation of resource allocation and resource exploitation." The development

of the environmental right must further be considered in terms of South Africa's

colonial past which was characterised by conflicts over land and access to natural

resources. 12 Moreover, the apartheid ideology was essentially concerned with social

engineering which exacerbated this already untenable situation, since it created

additional discrepancies in terms of physical, spatial and economic planning and

9 This correlates to a large extent with the international scenario where increased worldwideenvironmental degradation gave rise to the development of an environmental right in theinternational arena. See in this regard Vid Vukasovic, Protection of the Environment: One of theKey Issues in the Field of Human Rights, 59 REVISTA JURIDICA UPR 889 (1990). There is nosingle and comprehensive international law instrument on human rights and theenvironment. Some international instruments, however, recognise an environmental rightincluding, inter alia, the United Nations Conference on the Human Environment of 1972;the African Charter on Human and People's Rights of 1981; and the World Charter forNature of 1982. See also MAGUELONNE DEJEANT-PONS, MARC PALLEMAERTS & SARAFIORAVANTI, HUMAN RIGHTS AND THE ENVIRONMENT: COMPENDIUM OF INSTRUMENTSAND OTHER INTERNATIONAL TEXTS ON INDIVIDUAL AND COLLECTIVE RIGHTS RELATINGTO THE ENVIRONMENT IN THE INTERNATIONAL AND EUROPEAN FRAMEWORK (Strasbourg:Council of Europe, 2002) for a detailed exposition on the development of theenvironmental right in international context. See also supra note 4, pp. 255-256.

10 See for an insightful discussion on South Africa's transition from a non-democratic to ademocratic constitutional State supra note 2, pp. 1-11, 35-42.

"1 Willemien Du Plessis and Johan Nel, An Evaluation of NEMA Based on a Genetic Frameworkfor Environmental Framework Legislation, 8 SOUTH AFRICAN JOURNAL OF ENVIRONMENTAL

LAW AND POLICY 1 (2001).

12 Francois Du Bois and Jan Glazewski, The Environment and the Bill of Rights, inBUTrERWORTHS BILL OF RIGHTS COMPENDIUM (Durban: Butterworths, 2004), p. 3.

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lack of state response to environmental degradation and human needs.13 Whenconsidered in this context, it is thus not surprising that the development of theenvironmental right was principally motivated and driven by those seeking toaddress the civil and political injustices of apartheid and subsequent environmentalinjustices caused by this ideology.14

During the early 1990s an attempt was made to include a right to a cleanand healthy environment in what was to become the Environment ConservationAct 73 of 1989 (hereafter the ECA).15 This endeavour, however, nevermaterialised.16 It was only during the negotiation process that led to theestablishment of the Interim Constitution that possible inclusion of anenvironmental right was again considered. The negotiation process entailed asignificant degree of political trade-offs. Hence, those proponents arguing for theinclusion of an environmental right in the Interim Constitution, had to carefullyconsider the nature, extent and content of such a right, its relationship with otherfundamental rights, and the potential role of an environmental human right in thenew South African democratic order. 7 The result of the negotiation process wasthe inclusion of a narrowly formulated environmental right in Section 29 of theInterim Constitution. Section 29 provided that:

Every person shall have the right to an environment which is notdetrimental to his or her well-being.

The limited nature of this right may arguably be evidence of the political trade-offsthat were made. Firstly, Section 29 was formulated in such a way that it conferredan individual, rather than a collective right, thereby excluding the application of the

13 Ibid.

14 Ibid.

15 The ECA served as the primary environmental protection act for more than a decade. SeeMarinus A. Rabie, The Environment Conservation Act, in RICHARD F. FUGGLE & MARINUS A.RABIE (EDs.), ENVIRONMENTAL MANAGFMENT IN SOUTH AFRICA (Cape Town: Juta, 1992),pp. 99-119. Most of its provisions have now been repealed by the National EnvironmentalManagement Act 107 of 1998. This latter is considered to be progressive and modernenvironmental law legislation, and currently serves as the primary framework act forenvironmental governance and management efforts in South Africa. See for acomprehensive discussion, supra note 11, pp. 1-37, and JAN GLAZEWSKI, ENVIRONMENTAL

LAW IN SOUTH AFRICA (LexisNexis/Butterworths, 2005, 2nd ed.), pp. 131-161.

16 Even if an environmental right were included in the ECA, it is doubtful whether thisprotection would have been adequate since the ECA is not a constitutional legislativearrangement, but rather a normal environmental Act of Parliament operating under the ruleand supremacy of constitutional provisions.

17 See GLAZEWSKI, supra note 15, p. 67.

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right to injured groups. 8 This presented a significant shortcoming, since it was

especially groups that suffered environmental injustices at the hands of the

previous apartheid government. 9 Secondly, the right was formulated in the

negative, which may imply that no duties (in the form of socio-economic rights) onthe part of government existed to protect the environment. 20 The right was

accordingly relegated to a classic fundamental human right, rather than a socio-

economic right which should place a positive duty on government to fulfil the aims

and objectives of the right. It merely acted as a 'shield' against state and private

party intervention. Thirdly, it is noted that Section 29 may have been too

anthropocentric in nature, since it did not specifically provide for protection

measures for the benefit of the natural environment. It also failed to endorse the

all important and internationally-recognised concept of sustainability and

furthermore did not refer to general accepted components of environmental law,namely, resource utilisation and conservation, pollution control, waste

management and planning, and land use.21

The current formulation of Section 24 suggests that the negotiationprocess which preceded the 1996 Constitution, took into consideration a numberof these concerns. The result is that the environmental right, as it is currentlyformulated and enshrined in the 1996 Constitution, may be considered as thefulcrum around which environmental protection endeavours in South Africarevolve. Further paragraphs shed light on the content of this right and additionalrights and constitutional provisions that are meant to assist in the creation of whatGlazewski and Du BoiS22 term a 'just environmental dispensation' in SouthAfrica. 23

18 MICHAEL KIDD, ENVIRONMENTAL LAW: A SOUTH AFRICAN GUIDE (Kenwyn: Juta, 1997),p. 36, also observes that the individual character of Section 29 is contrary to the third-generational character generally afforded to environmental rights, in that they are applicableto groups rather than individuals.

19 For a discussion on environmental justice and the South African environmental law order,see Loretta A. Feris, The Conceptualisation of EnvironmentalJustice Within the Context of the SouthAfrican Constitution (LLD Thesis, University of Stellenbosch, 2000).

20 Supra note 18 , p. 36.

21 Ibid., and Winstanley, supra note 3, p. 85.22 Supra note 12, p. 5.23 See for a comprehensive discussion on the role of the Bill of Rights (and specifically Section

24) to promote environmental justice and address the environmental legacy of Apartheid inSouth Africa, Jan Glazewski, Environmental Jusice and the New South Aftican Democratic LegalOrder, ACTAJURIDICA 1 (1999).

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2. THE BILL OF RIGHTS AND THE ENVIRONMENT

2. 1 The Environmental Clause

Substantive aspects of the environmental right are provided by Section 24 of the1996 Constitution. Section 24 states that:

Everyone has the right(a) to an environment that is not harmful to their health or well-being; and(b) to have the environment protected, for the benefit of presentand future generations, through reasonable legislative and othermeasures that

(i) prevent pollution and ecological degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development and use ofnatural resources while promoting justifiable economic andsocial development. 24

Section 24 is part of the Bill of Rights of the 1996 Constitution, and may thereforebe classified as a fundamental human right.25 This means that the environmentalright is attributed the same constitutional status afforded to other fundamentalrights in the 1996 Constitution.26 The 1996 Constitution is also the supreme law ofSouth Africa. The inclusion of the environmental right therefore entails that

24 It should be noted that South African law does not explicitly provide for a right todevelopment. It may however be derived from the wording of Section 24 that this right isdeemed to implicitly protect and promote certain aspects of development. See Gerrit M.Ferreira, Volhoubare Ontwikkeling, Regverdige Ontwikkeling en die Fundamentele Reg op 'n Skoon enGesonde Omgewing, 3 JOURNAL OF SOUTH AFRICAN LAW 436 (1999).

25 See on the classification of the environmental right as a fundamental human right, ColleenTheron, Environmental Rights: An Overview of Interpretations, 4 SOUTH AFRICAN JOURNAL OFENVIRONMENTAL LAW AND POLICY 29 (1997), and supra note 7, pp. 155-176.

26 Fundamental rights are divided into three different generations. First generation or 'blue'rights are civil or political rights of individuals including, for example, the right to equalityand the right to life. The State is specifically required to refrain from infringing these typesof rights. Second generation, or 'red' rights are socio-economic rights which place apositive duty on the State to realise their substantive content. These rights may, forexample, include the rights of access to food, education and housing. Environmental rightsare typically classified as third generation or 'green' rights which are applicable to a certaingroup. The Section 24 environmental right is unique in the sense that it contains aspects ofeach of these classifications. See supra note 18, p. 35, and supra note 7, pp. 157-158.

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individuals may assert this right on a constitutional basis. This significantlyenhances the number, nature and scope of legal remedies available to enforce theright, especially insofar as one may rely on all available constitutional remedies toassert this right.27 As far as the Bill of Rights is concerned, Section 7 of the 1996Constitution reinforces the significance of the constitutionally protectedenvironmental right by stating that:

7(1) This Bill of Rights is a cornerstone of democracy in SouthAfrica. It enshrines the rights of all people in our country andaffirms the democratic values of human dignity, equality andfreedom.(2) The state must respect, protect, promote and fulfil the rights inthe Bill of Rights.(3) The rights in the Bill of Rights are subject to the limitationscontained or referred to in Section 36, or elsewhere in the Bill.

It may be derived from the wording of Section 7 that the environmental rightforms part of the democratic system in South Africa. It stands in close relationshipwith the values of human dignity, equality and freedom, and must be respected,protected, promoted and fulfilled by everyone.

As far as the application of Section 24 is concerned, it may firstly bederived from the wording of the right that no one has the right to a clean,unpolluted environment. The right recognises that pollution is inevitable in anindustrialised society, especially given the current limits of technological andscientific knowledge. By doing so, the right allows for some measure ofdevelopment which may involve a certain degree of pollution, as long as thispollution is not harmful to the health or well-being of people.28

Secondly, is 'everyone' meant to include people and inanimate objectssuch as plants and animals, or only people, or both? If only people were to be

27 Courts can, for example, declare laws, regulations, and all other measures or actions invalidand unconstitutional. Courts may then further award damages, order interdicts,administrative remedies, or issue a declaration of rights. See further in this regard JOHANDE WAAL, IAIN CURRIE & GERHARD ERASMUS, THE BILL OF RIGHTS HANDBOOK(Kenwyn: Juta, 2000), p. 154, and Morne van der Linde and Ernst Basson, Environment, inSTUART WOOLMAN ET. AL. (EDS.) CONSTITUTIONAL LAW OF SOUTH AFRICA (Cape Town:Juta, 2004, 2nd ed.), p. 50.

28 This arguably conforms to the internationally recognised principle of sustainability in termsof which a balance should be struck between economic, social and environmentalconsiderations.

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included, it would conform to the orthodox anthropocentric approach followed bySouth African environmental law, whereby it is generally accepted that humans arethe focus of environmental protection and governance efforts. 29 If inanimateobjects were also afforded the same protection under the right, the nature ofprotection would be more ecocentricaly oriented. In order to determine theapplication of the environmental right in this regard, one has to define'environment'. Environment is defined in Section 1 of the National EnvironmentalManagement Act 107 of 1998 (hereafter NEMA) as:

[T]he surroundings within which humans exist and that are madeup of(i) the land, water and atmosphere of the earth;(ii) micro-organisms, plant and animal life;(iii) any part or combination of (i) and (ii) and theinterrelationships among and between them; and(iv) the physical, chemical, aesthetic and cultural properties andconditions of the foregoing that influence human health and well-being.

In line with the South African anthropocentric approach, this definition ofenvironment includes humans and the relationships that humans have with thenatural environment, and more specifically within this environment. It, however,also includes all environmental media, biological life forms and processes,chemical, aesthetic and cultural components - a very comprehensive definition ascan be derived. Given this broad definition, shouldn't the environmental right thenalso be applicable to other components of the environment in addition to humans,such as plants and animals? It is argued that the definition of environment clearlyconsists of two very distinct considerations, namely human existence, and therelationship between humans and the non-human environment which influenceshuman health or well-being. Semantically; the emphasis is thus not necessarily onthe non-human components, but rather on the relationship with these componentsand the contribution these components may make to promote the health or well-being of humans. This argument, coupled with the fact that 'everyone' and not'everything' has an environmental right, clearly suggests that the South Africanenvironmental right only applies to humans.

Thirdly, the wording of the right suggests that it has vertical and horizontaleffect. Individuals may thus assert their environmental right against the state, and

29 GLAZEWSKI, supra note 15, pp. 72-75.

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against other individuals who may negatively affect their right.30 This must be readtogether with Section 8 of the 1996 Constitution which sets out the application ofthe Bill of Rights. Section 8 states that the Bill of Rights applies to all law, andbinds the legislature, the executive, the judiciary, and all state organs. According toSection 8, a provision of the Bill of Rights also binds a natural or a juristicperson.31 Whilst a broad platform for enforcement of the environmental right isestablished, government, all laws, including legislation, judicial precedent, commonlaw, customary law, international law, indigenous law, and private individuals aresubject to the Bill of Rights, and accordingly, also the environmental right. Thenature of the right further lends itself to be enforceable between private individuals(horizontal) and between individuals and the state (vertical). The primary aim ofthe right is not only to ensure effective enforcement by government action andprotection against arbitrary government intervention, but also to provide remediesto private individuals to assert this right where their health or well-being is affectedby, for example, the polluting activities of industry and other individuals. 32

Fourthly, the environmental right has a two-fold character. On the onehand, Section 24(a) may be construed as a classical, or traditional fundamental rightthat correlates with the rights to, inter alia, human dignity and life.33 Althoughenvironmental rights are traditionally classified as third-generation, or collectiverights, Section 24(a) is rather an individual, justiciable right, which may be invokedby individuals where this right is violated by state or private individual conduct.34

30 See further in this regard, DE WAAL, CURRIE & ERAsMUS, supra note 27, p. 405, andGLAZEWSKI, supra note 15, pp. 74-75.

31 Juristic persons include companies, closed corporations and associations.

32 See also the decision in Minister of Health and Welfare v. Woodcarb (Pty) Ltd and Others 1996 3SA 155 (N), where the Court stated that an infringement of environmental legislation, inthis instance the Atmospheric Pollution Prevention Act 45 of 1965, negatively affects theenvironmental right of people held under the Interim Constitution. See further GLAZEWSKI,supra note 15, pp. 74-75, and supra note 4, pp. 258-259 in this regard.

33 See Sections 10 and 11 of the 1996 Constitution respectively. See also supra note 27, p. 405,and note that Section 24(a) is formulated in the negative, implying that it is an -orthodoxnegative right' that provides for a certain minimum standard and not a positive right ofindeterminate extent. The reason for this may arguably be attributed to the very notion ofsustainability provided further on in Section 24. The core rationale behind sustainabilityarguably includes the creation of a harmonious balance between development, economic,and social considerations. If Section 24(a) was to be formulated in the positive, the requiredlegal platform for the achievement of this balance may not have been made possible.

34 See supra note 27, p. 403, and Michael Kidd, EnvironmentalJustice: A South Afiican Perspective,in GLAZEWSKI & GRAHAM BRADFIELD, supra note 3, p. 155.

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This right may specifically be invoked where the health or well-being of individualsis affected in an environmental context. 'Health' should be interpreted to mean thehealth of individuals or the public at large, specifically where health is affected bypolluting activities.35 'Health' in this context, reaches beyond the Section 27 rightof access to health care and the provision of health care services. 36 It rather relatesto the provision of a healthy, pollution-free environment.37 'Well-being' is an evenbroader concept than 'health' and relates to those instances where a person'senvironmental interests are affected. It furthermore entails that the environmentand the interests that people may have in the environment, have a specific inherentor intrinsic value to people, which may, for example, include the aesthetic valuethat some components of the environment may have to people.38 The aestheticvalue of a view of the ocean may, for example, be appreciated under the term 'well-being'. 39 Hence, it denotes a certain spiritual and psychological meaning which mayeven include socio-economic dimensions. 40

Whilst Section 24(a) clearly serves as a shield against state or privateintervention, Section 24(b) may be construed as a socio-economic right thatimposes duties on government to protect the environment for present and future

35 See for a detailed discussion supra note 27, pp. 13-50.

36 Section 27 states, inter alia, that:

(1) Everyone has the right to have access to(a) health care services, including reproductive health care...

See for a detailed discussion GLAZEWSKI, supra note 15, pp. 76-77.

Health in this sense may thus also include the mental and physical integrity of people; seefurther supra note 4, p. 260.

38 See further GLAZEWSKl, supra note 15, p. 77; supra note 27, pp. 405-406; and Kidd, supra

note 34, p. 155. See also Ferreira, supra n 24, pp. 90-91, 106-110 for a further reflection onthe duty imposed on the State by Section 24(b). The author specifically emphasizes thepoint that the implementation of socio-economic rights is to a large extent dependent onpolitical and not so much legal considerations. Moreover, it is stated in this regard that oneof the fundamental problems with the enforcement of socio-economic rights is thereasonable distribution of limited resources that may be necessary to give effect to theserights.

39 See in this regard Paola v. Jeeva No and Others 2004 1 SA 396 (SCA), and supra note 27, pp.15-16. See also supra note 2, pp. 128-129 for a further discussion on the meaning of theseconcepts.

40 Supra note 4, p. 260.

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generations. 41 The socio-economic character of Section 24(b) correlates with other

socio-economic rights in the 1996 Constitution, including, amongst others, theright of access to housing; the right of access to health care, food, water and social

security; and the socio-economic rights of children. 42 The state must comply withthis constitutional duty by way of 'reasonable legislative and other measures' which

must, inter alia, prevent pollution and ecological degradation, promote

conservation, secure sustainable development and use, and promote justifiable

economic and social development. 43 Whilst the meaning of 'legislative measures' isself-evident,44 'other measures' may be construed to mean, amongst others,administrative measures executed in terms of environmental governance mandatesrelating to issues such as protection of natural resources, regulation of pollution,enforcement of environmental laws, and policy development. 'Other measures'

may further include measures of an administrative, technical, financial andeducational nature.4 5 These provisions furthermore do not only mean thateveryone is entitled to the realisation of Section 24 by way of reasonable legislativeand other measures, but also that all legislative and other measures must conformto the criteria espoused by Section 24(b)(i)-24(b)(iii). 46 These measures mustfurthermore be reasonable. This is an inherent limitation in Section 24 since it maycurtail or qualify the socio-economic duty of the state to realse Section 24.

41 See also Helen Stacy, Environmental Justice and Transformative Law in South Africa and SomeCross-Jurisdictional Notes About Australia, the United States and Canada, in GLAZEWSKI &BRADFIELD, supra note 3, p. 51, and supra note 2, pp. 119-122 for a discussion on thenature and enforcement of socio-economic rights in South Africa.

42 See respectively Sections 26, 27 and 28 of the 1996 Constitution.

43 Some commentators argue that the inclusion of a duty to promote justifiable economicdevelopment is an unfortunate insertion in any environmental right. The principal aim ofenvironmental protection, they argue, is not to promote economic development, but ratherto secure sustainability by creating a balance between economic, social and environmentalconsiderations in the development process. It is further observed that it would have beenmore appropriate to have phrased this particular provision to mean that reasonablelegislative and other measures should not impede economic development unreasonably. Seefurther supra note 18, p. 38.

Legislative measures in this context include, inter alia, legislation enacted, adopted andenforced by government.


46 In other words, reasonable legislative and other measures must "prevent pollution andecological degradation; promote conservation; and secure ecologically sustainabledevelopment and use of natural resources while promoting justifable economic and socialdevelopment". See GLAZEWSKI, supra note 15, pp. 78-81.

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Government may thus arguably rely on, for example, a lack of human and financialresources to justify why it has not taken legislative and other measures to giveeffect to the environmental right.47 The latter may arguably not be conducive tothe promotion of environmental protection in a developing country which has tocarefully allocate and spend available financial resources to ensure effectivegovernance of all sectors of South African society. This situation is however notpeculiar to the environmental right, since most of the other socio-economic rightsin the 1996 Constitution are qualified in a similar manner.48

In line with international environmental law developments, Section 24(b)also recognises the concept of sustainability,49 and corresponding concepts such asintergenerational equity,5o as important concepts in South African environmentallaw.51

Apart from the environmental-specific aspects provided for by Section 24,various other procedural and substantive fundamental human rights exist whichmay operate alongside, and subsequently support the environmental right. Theseare discussed below.


48 See, for example, Sections 26, 27 and 28 of the 1996 Constitution.

49 GLAZEWSKI, supra note 15, pp. 80-81, observes in this regard that sustainability forms thefundamental basis for the entire environmental law regime in South Africa. The author alsosuccinctly points out that whilst sustainability is an imperative in the domestic legal order,environmental protection must always be balanced with "justifiable economic and socialdevelopment", the latter which must be aimed at, amongst others, alleviating poverty,providing housing to the homeless, and providing equal opportunities for economicdevelopment and growth in a developing country such as South Africa.

50 For a comprehensive and insightful exposition on the concept of intergenerational equity,see EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW,CoMMON PATRIMONY AND INTERGENERATIONAL EQUITY (Dobbs Ferry, N.Y.:Transnational Publishers, 1989), pp. 17-46.

51 This is reiterated by the Section 2 principles of NEMA that further expand on the nature,ambit and objective of sustainability and related concepts in South African law. Theseprinciples include, amongst others, the polluter pays principle, the duty of care principle,the precautionary and preventive approach, the life-cycle approach and the principles ofdemocracy, transparency and participation in all environmental governance efforts. See fora comprehensive discussion on sustainability in the South African context, Elmene Bray,Towards Sustainable Development: Are We on the Right Track?, 5 SOUTH AFRICAN JOURNAL OFENVIRONMENTAL LAW AND POLICY 1 (1998).

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2.2 Supplementary Rights

2.2.1 The equality clause

Equality is a moral idea which entails that "people who are similarly situated in

relevant ways should be treated similarly." 52 Section 9 of the 1996 Constitution

advocates the social ideal of equality by stating that:

9(1) Everyone is equal before the law and has the right to equal

protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and

freedoms. To promote the achievement of equality, legislative and

other measures designed to protect or advance persons, or

categories of persons, disadvantaged by unfair discrimination may

be taken.

(3) The state may not unfairly discriminate directly or indirectly

against anyone on one or more grounds, including race, gender,sex, pregnancy, marital status, ethnic or social origin, colour,sexual orientation, age, disability, religion, conscience, belief,culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly

against anyone on one or more grounds in terms of subsection

(3). National legislation must be enacted to prevent or prohibit

unfair discrimination.

(5) Discrimination on one or more of the grounds listed in

subsection (3) is unfair unless it is established that the

discrimination is fair.53

In the environmental context, the right to equality may specifically be invoked to

promote environmental justice in society. Environmental justice is:


53 Equality in terms of Section 9 may be divided into formal, substantive and restitutionaryequality. Formal equality means that all persons are equal bearers of rights and are entitledto full and equal enjoyment of all rights and freedoms. Substantive equality requires anexamination of prevailing social and economic conditions in society to determine whetherequality is sustained. Restitutionary equality implies that inequality and subsequentdisadvantages caused by past unfair discrimination, be remedied by means of, inter alia,affirmative action. See for a detailed discussion, supra note 30, pp. 200-201, 223-225.

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[a]bout social transformation directed towards meeting humanneeds and enhancing the quality of life - [including] economicequality, health care, shelter, human rights, species preservation,and democracy - [by] using resources sustainably. A centralprinciple of environmental justice stresses equal access to naturalresources and the right to clean air and water, adequate healthcare, affordable shelter, and a safe workplace... Environmentalproblems therefore remain inseparable from other social injusticessuch as poverty, racism, sexism, unemployment, [and] urbandeterioration. 54

The South African government has had an enormous task redressing the.environmental legacy of apartheid'.55 Environmental justice is therefore ofparticular concern in South Africa given its discriminatory past.56 Wheredisproportional negative environmental effects, or consequences are caused, orhave been caused by unequal treatment or unfair discrimination, and thecorresponding rights and values have been adversely affected, the right to equalitymay arguably be relied upon to address this inequality.

The Promotion of Equality and Prevention of Unfair Discrimination Act 4of 2000 has been promulgated in view of Section 9(4) of the 1996 Constitution.57

This Act aims to provide a statutory footing for the Section 9 constitutionalprovisions. The preamble of the Act specifically provides that one of its aims is:

[T]the eradication of social and economic inequalities, especiallythose that are systematic in nature which were generated in ourhistory by colonialism, apartheid and patriarchy, and whichbrought pain and suffering to the great majority of our people.

54 Richard Hofrichter, Introduction, in RICHARD HOFRICHTER (ED.) Toxic STRUGGLES: THE

THEORY AND PRACTICE OF ENVIRONMENTAL JUSTICE (Philadelphia: New SocietyPublishers, 1993), p. 4 (quoted by Glazewski, supra note 3, p. 3).

55 Glazewski, supra note 3, p. 2.

56 For a general discussion on the historical context in which inequality prevailed in SouthAfrica, see supra note 30, pp. 199-200. For a detailed discussion of the application ofenvironmental justice in the South African context, see supra note 34, pp. 142-160.

s7 For a discussion of this act, see supra note 30, pp. 225-229.

2008] 311


Although the Act does not explicitly mention environmental discrimination or

environmental justice issues, the wide ambit of its provisions arguably also include

issues relating to environmental justice.

2.2.2 The human dignit clause

Section 10 of the 1996 Constitution states that '[e]veryone has inherent dignity andthe right to have their dignity respected and protected.' The right to human dignitylies at the core of the human rights enshrined in the Bill of Rights. This point hasbeen reiterated in the Constitutional Court where it was stated that:

Recognising a right to dignity is an acknowledgement of the intrinsicworth of human beings: human beings are entitled to be treated as worthy ofrespect and concern. This right therefore is the foundation of many of the otherrights that are specifically entrenched in the Constitution.58

Human dignity is accordingly a justiciable and enforceable right, as well asa value59 that provides guidance in the interpretation of other fundamental rights. 60There is a close correlation between the right to dignity and environmental justiceissues, since "the imposition of environmental injustices ultimately strikes athuman dignity."61 Where, for example, people in an informal settlement do nothave access to clean water, and are subject to continuous environmental pollution,it may be argued that their human dignity is negatively affected. Given thesignificant role of human dignity in the South African Bill of Rights, it may beargued that this right could play a fundamental role to protect human dignity froman environmental point of reference.

2.2.3 The 7ight to hjfe clause

In terms of Section 11 of the 1996 Constitution, everyone has the right to life. Asis the case with the right to human dignity, the right to life has been described asone of the most important of all human rights from which all other human rightsemanate. 62 This almost absolute and unqualified right, therefore, also forms the

58 S v. Makwanyane 1995 3 SA 391 (CC), at 328.

59 Section 1 of the 1996 Constitution.


61 GLAZEWSKI, supra note 15, p. 100.

62 Supra note 58, at 144, 146.

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foundation of the environmental right, and may play an important role where theenvironmental right beckons interpretation and application. The anthropocentricnature of South African environmental law further supports this view, since it isspecifically humans in their environment, their health, their well-being, andultimately life and quality of life, that must be protected through sustainableenvironmental governance efforts executed in terms of Section 24.

2.2.4 The freedom of trade, occupation and profession clause

Section 22 of the 1996 Constitution states that:

Every citizen has the right to choose their trade, occupation orprofession freely. The practice of a trade, occupation orprofession may be regulated by law.

The relevance of this right for environmental concerns may seem at the outset tobe insignificant. It is however arguable that this right may be of particular relevancein the context of pollution control and government regulation of specificallyindustrial activities that cause pollution. The right to freedom of trade, occupationand profession can be relied on by natural and juristic persons.63 It follows that thisright is also applicable to, for example, industrial entities that may be responsiblefor environmental pollution through activities inherent to their trade. Theseentities have the freedom to, inter alia, choose their trade, for example, themanufacturing of hazardous and noxious chemicals. The practice of this trade(which may include the actual manufacturing process that can lead to pollution),may however be regulated by law in terms of Section 22. The practice of trade ofthe entity could thus be circumscribed and regulated by law, and moreover, may belimited by the Section 36 limitation clause of the 1996 Constitution.64 It isproposed in this regard that 'regulation by law' may include environmental lawprovisions, for example, Section 28 of NEMA that provides for a duty of care andremediation of environmental damage.65 Whilst an industrial entity may have the

63 Juristic persons include, amongst others, companies and closed corporations. See in thisregard supra note 30, pp. 382-383.

64 See section 2.2.12 below for a discussion on the limitation clause.

65 Section 28(1) states that:

Every person who causes, has caused or may cause significant pollution or degradation ofthe environment must take reasonable measures to prevent such pollution or degradationfrom occurring, continuing or recurring, or, in so far as such harm to the environment is

2008] 313


'right' to manufacture, for example hazardous and noxious substances, it will also

have a reciprocal duty to remediate consequential environmental damage caused byits processes.

2.2.5 The propery clause

The 1996 Constitution also provides for the right to property. Section 25, inter alia,states that:

25(1) No one may be deprived of property except in terms of law

of general application, and no law may permit arbitrarydeprivation of property.

(2) Property may be expropriated only in terms of law of general

application

(a) for a public purpose or in the public interest; and(b) subject to compensation, the amount of which and thetime and manner of payment of which have either beenagreed to by those affected or decided or approved by acourt.

(4) For the purposes of this section

(a) the public interest includes the nation's commitment toland reform, and to reforms to bring about equitable accessto all South Africa's natural resources; and(b) property is not limited to land.

(5) The state must take reasonable legislative and other measures,within its available resources, to foster conditions which enablecitizens to gain access to land on an equitable basis.

The comprehensive right to property is of particular relevance to environmentalconcerns in South Africa. It is noteworthy that 'property' is neither limited to land,nor to ownership. 'Property' may include, amongst others, other real rights, as wellas natural resources and public goods, including the seas and rivers. 66 This arguablyimplies that people have a right that their neighbours exercise their own propertyrights with restraint, and that South Africans further have a right to have the

authorised by law or cannot reasonably be avoided or stopped, to minimise and rectifysuch pollution or degradation of the environment.


314 [Vol. 14:298


integrity of public goods and natural resources maintained. 67 This is especiallyrelevant in the context of neighbour law, where the polluting activities of aneighbour may affect the health or well-being of residents in the surroundingarea.68

Property may furthermore only be expropriated in terms of law of generalapplication, inter alia, for a public purpose, or in the public interest. 69 The publicinterest includes "the nation's commitment to land reform, and to reforms to bringabout equitable access to all South Africa's natural resources."70 Property may thusbe expropriated if expropriation is deemed necessary to address land reform, andaccess to, for example, water resources, bio-diversity, and cultural heritage objects.There is accordingly a direct correlation between land-use managementconsiderations and legislation dealing with access to natural resources, such as theNational Water Act 36 of 1998. This is reiterated by Section 25(8) of the 1996Constitution which provides that the state may take legislative and other measuresto achieve land, water and related reforms.71

2.2.6 The access to information clause

The right of access to information, which is currently regulated by the Promotionof Access to Information Act 2 of 2000 (hereafter the PAIA), is enumerated inSection 32 of the 1996 Constitution.72 Section 32 provides that:

67 Ibid.

68 This is based on the common law doctrine of sic utere tuo non laedas, in terms of which onemay only use his/her own property in a way that does not harm another. This doctrine hasspecific relevance for neighbour law and the law of nuisance. The result/effect of thisdoctrine is that property rights are not absolute and may be restricted in certain instances,especially those instances where the rights/interests of someone are negativelyaffected/infringed by the actions/rights/interests of their neighbour(s).

69 Section 25(2)(a).

7o Section 25(4)(a).

71 Section 27(l)(b) further provides in this regard that everyone shall have the right of accessto sufficient food and water.

72 The right of access to information includes not only a right of access to information heldby the State, but also of access to information held by another person that is required forthe exercise or protection of any rights. The rationale behind the right of access toinformation is arguably to foster a culture of accountable governance, since governmentscan be held accountable and liable on the basis of explanations/reasons for anygovernmental actions. This right also articulates the notion of open democracy that closelycorrelates with the aforementioned. See in this regard GEORGE E. DEVENISH, KARTHY

2008] 315


32(1) Everyone has the right of access to

(a) any information held by the state; and

(b) any information that is held by another person and that

is required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right,

and may provide for reasonable measures to alleviate the

administrative and financial burden on the state.73

Information includes any information held by the state (and any other person)

which may have an impact on an aggrieved person invoking this right.74 Hence,information in this context may specifically relate to information used during, or

for the sake of, decision making, including policies and criteria used by

administrative bodies.7 5 Inaccessible information held by, for example, the

Department of Water Affairs and Forestry, which was used during the assessment

of an environmental authorisation, may be demanded by an affected developer

who feels that his/her right to administrative justice has been infringed due to

unreasonable delay during the decision making process. 76

Access to information held by the state may be particularly relevant in the

environmental context.77 This is attributed to the notion that administrative

decision making, and consideration of certain technical criteria, policy

considerations and so forth, may have a direct or indirect bearing on the

GOVENDER & DAVID HULME, ADMINISTRATIVE LAW AND JUSTICE IN SOUTH AFRICA

Durban: Butterworths, 2001), pp. 181, 187.

73 See further Louis J Kotze, The Application of Just Administrative Action in the South AfricanEnvironmental Governance Sphere: An Analysis of Some Contemporay Thoughts and Recentjuriprudence, 2 POTCHEFSTROOM ELECTRONIC LlW\JOURNAL 14 (2004).


75 Ibid.

76 For a further discussion on the impact of the right of access to information on other rights,see supra note 72, pp. 194-196.

77 GLAZEWSKI, supra note 15, pp. 94-99. See for a comparative perspective on the right ofaccess to environmental information the following contributions of Willemien du Plessis:Omgewingsinhgling in die Europese Gemeenskap, 115 SOUTH AFRICAN LAWJOURNAL 222 (1998);

Reg op Omgewingsin/igting in Duitsland, 62 TYDSKRIF VIR HEDENDAAGSE RONIFINS-HOLLANDSE REG 352 (1999); 'n Reg op Om evingsinhgting in Nederland, 10 STELLENBOSCH

LAW REVIFEv 36 (1999); and Enforcement of Environmental Rights by Way of a Right to Information

,OBITER 92 (1999).

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environment and developers who are involved with infrastructural developments.78

In Van Huysteen v. Minister of Environmental Affairs,79 the court, for example, heldthat the applicant had access to state-held documents regarding the developmentof a proposed steel mill and its potential adverse environmental impact.

There is no distinction made in the PAIA between general informationand environmental information.80 The PAIA does, however, mention 'public safetyor environmental risk'81 in Sections 36(2)(c), 42(5)(c), 46(a)(ii), 68(2) and 70(1),which is, in most instances, more applicable to commercial information held byprivate bodies and third parties such as industry, and not necessarily State organs.82

NEMA howx ever significantly extends the right of access to information providedin the PAIA to environmental matters. Section 2(4)(k) of NEMA specificallyprovides that "[d]ecisions must be taken in an open and transparent manner, andaccess to information must be provided in accordance vith the law." 3 Section31(1)(a) of NEiA provides in addition that:

[E]very person is entitled to have access to information held bythe State and organs of state which relates to the implementationof this Act and any other law affecting the environment, and to

See also for a more general discussion W. du Plessis, Right to Environmental Information in theUSA, 5 SOUTH AFRICANJOURNAL OF ENVIRONMENTAL LAW AND POLICY 115 (1998).

I 'an Huysteen r. Minister of EnironmentalAfairs, 1996 1 SA 283 (C).

Section 9 of the PAIA.

'Public safety or environmental risk' is defined in Section 1 as:

[Harm or risk to the environment or the public (including individuals in their workplace)associated xith(a) a product or service which is available to the public;(b) a substance released into the environment, including, but not limited to, the workplace;(c) a substance intended for human or animal consumption;(d) a means of public transport; or(e) an installation or manufacturing process or substance which is used in that installationor process.

GLAZEWSKI, supra note 15, pp. 94-99.

It is significant that access to information is provided for in Section 2 of NE.\LL. Thissection describes the national environmental management principles which are applicablethroughout South Africa to the actions of all State organs. NEMAL therefore recognises theimportance of access to information for the successful functioning of not onlyenvironmental management and governance, but also for the achievement of the objectivesof the act as a whole.

2008] 317


the state of the environment and actual and future threats to the

environment, including any emissions to water, air or soil and the

production, handling, transportation, treatment, storage and

disposal of hazardous waste and substances.

Although Section 31(1) states that access to environmental information will be

regulated by the PAIA, the Act, in Section 6 read with Schedule 1 of the 1996

Constitution, preserves Section 31 of NEMA.8 4

2.2.7 The administrative justice clause

Section 33 of the 1996 Constitution provides that:

33(1) Everyone has the right to administrative action that is

lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by

administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these

rights, and must

(a) provide for the review of administrative action by a

court or, where appropriate, an independent and impartial

tribunal;

(b) impose a duty on the state to give effect to the rights in

subsections (1) and (2); and

(c) promote an efficient administration.85

Section 33 embraces the concept of administrative justice. Administrative justice

aims to, inter alia, ensure good governance and administration, ensure fair dealing

in administrative context, enhance the individual's protection against abuse of state

power, promote public participation in decision making, and strengthen the notion

that public officials are answerable and accountable to the public they are meant to

serve.86 In sharp contrast with the past regime of parliamentary sovereignty, it is


85 See further supra note 72, pp. 1-34, and Louis 3. Kotz6 and Andries van der Walt, justAdministrative Action and the Issue of Unreasonable Delay in the Environmental Impact Assessment

Process: A South African Perspective, 10 SOUTH AFRICAN JOURNAL OlF ENVIRONMENTAL LA\X

AND POLICY 39 (2003).

86 Supra note 71, pp. 14-16.

318 [Vol. 14:298


argued that individuals have certain rights, privileges and liberties in the context ofadministrative relationships."7 Where the public administration consequently acts inan unlawful and unreasonable manner and contrary to public interest whenadministering its functions, the state may be held liable in terms of Section 33 andthe provisions of the Promotion of Administrative Justice Act 3 of 2000.88 Theseprovisions may be of particular relevance for dispute settlement in environmentalcontext, especially between State organs and individuals, since most environmentaldisputes arise because of the exercise of administrative decision making powers (beit an abuse of powers, failure to take decisions, or delays in decision making).89 Forexample, in South African Shore Angling Association and Another v. Minister ofEnvironmental Affairs and Tourirm,90 the validity and constitutionality of regulationsissued in terms of Section 44 of NEMA were challenged on the grounds ofreasonableness. The parties contended that the regulations imposing a general banon recreational use of vehicles in the coastal zone were ultra vires, orunconstitutional. The court held that this was not the case, since the regulationsdid not constitute an absolute ban and allowed for exemptions and permitting.91

The provisions on administrative justice should be read with theprovisions of Sections 195(1) and 195(2) of the 1996 Constitution that establishbasic values and principles according to which the public administration must beexecuted. 92 It is stated, in this regard, that the public administration must begoverned by the general democratic values and principles enshrined in the 1996Constitution. Moreover, specific principles are provided, which advocate that: ahigh standard of professional ethics be promoted and maintained; efficienteconomic and effective use of resources be promoted; public administration bedevelopment-oriented; services be provided impartially, fairly, equitably andwithout bias; people's needs be responded to, and the public be encouraged toparticipate in policy-making; public administration be accountable; transparency befostered by providing the public with timely, accessible and accurate information;

87 Section 33(3)(a) furthermore provides for judicial review. This replaces the previouspractice of parliamentary sovereignty.

88 Supra note 71, p. 8 5 .

89 Supra note 27, pp. 36-37.

90 South African Shore Angling Association and Another v. Minister of Environmental Affairs andTourism, 2002 5 SA 511 (SE).

91 See further supra note 27, pp. 36-37.

92 Supra note 85, pp. 50-51.

2008] 319


good human-resource management and career-development practices to maximisehuman potential, be cultivated; and public administration be broadly representativeof the South African people, with employment and personnel managementpractices based on ability, objectivity, fairness, and the need to redress theimbalances of the past to achieve broad representation. 93 It is also explicitly statedthat these principles apply to all State organs as well as state administration in everysphere of government. 94

2.2.8 The access to courts clause

Section 34 of the 1996 Constitution states that:

Everyone has the right to have any dispute that can be resolved bythe application of law decided in a fair public hearing before acourt or, where appropriate, another independent and impartialtribunal or forum.

Section 34 reinforces the procedural rights available to aggrieved parties inenvironmental disputes. For Section 34 to become operative and applicable, it isnecessary that a dispute should exist. An individual who is of the opinion thathis/her right to, for example, administrative justice is being infringed, canapproach a court of law or independent tribunal or forum to have the legal disputearising from the infringement adjudicated.95 The right to have a dispute settled isvery wide and as such, it may extend or reinforce the rights of an aggrievedindividual. The right includes: a right of access to a court or independent forum;the requirement that courts and forums should be independent and impartial; andthe requirement that the dispute be decided in a fair and public hearing.96 Thisright is furthermore significant insofar as it affords everyone whose environmentalright has been infringed, the opportunity to approach a forum to have the disputesettled and the right enforced.

Section 195(1) of the 1996 Constitution.

94 Section 195(2) of the 1996 Constitution.

Supra note 30, p. 555.

96 See ibid., pp. 554-580, for an in-depth discussion.

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2.2.9 The enforcement of rights clause/locus standi

The right of access to courts acts as a supplement to the enforcement of rightsclause. The enforcement of rights clause provides for the right to a wide legalstanding (locus standi). Section 38 of the 1996 Constitution states in this regard that:

38. Anyone listed in this section has the right to approach acompetent court, alleging that a right in the Bill of Rights has beeninfringed or threatened, and the court may grant appropriaterelief, including a declaration of rights. The persons who mayapproach a court are(a) anyone acting in their own interest;(b) anyone acting on behalf of another person who cannot act intheir own name;(c) anyone acting as a member of, or in the interest of, a group orclass of persons;(d) anyone acting in the public interest; and(e) an association acting in the interest of its members.

This right aims to, inter alia, promote enforcement of all constitutional rights,including the Section 24 environmental right. The wide locus standi offered bySection 38 also correlates with the widely-applicable environmental right whichstates that 'everyone' has a right to an environment which is not detrimental totheir health or well-being.97 In an environmental context, it is furthermorenoteworthy that the Section 38 constitutional provisions on locus standi have beensignificantly extended by Section 32 of NEMA. Section 32(1) states that:

Any person or group of persons may seek appropriate relief inrespect of any breach or threatened breach of any provision ofthis Act, including a principle contained in Chapter 1, or any otherstatutory provision concerned with the protection of theenvironment or the use of natural resources(a) in that person's or group of person's own interest;(b) in the interest of, or on behalf of, a person who is, forpractical reasons, unable to institute such proceedings;(c) in the interest of or on behalf of a group or class of personswhose interests are affected;

GLAZEWSKI, supra note 15, pp. 75. See also the discussion in paragraph 2.1 above.

2008] 321


(d) in the public interest; and

(e) in the interest of protecting the environment.

Section 32(1) firstly considerably extends the application of the Section 38

constitutional clause to include not only the rights contained in the Bill of Rights,but also "any breach or threatened breach of any provisions of this act

[NEMA]... or any other statutory provision concerned with the protection of the

environment or the use of natural resources."98 Secondly, it may even be argued

that apart from liberating public interest litigation, Section 32(1)(e) extends the locus

standi provisions, by providing that individuals or a group may currently act not

only in their own interests, but also in the interest of the environment.9 9 As far as

'having an interest in the relief sought' is concerned, it is significant that the

environment is equated in terms of legal standing with individuals and groups. This

may ultimately broaden the scope of remedies available to people acting in their

own interest and the interests of the environment.

2.2. 10 The access to housing clause

Section 26 provides for the right of access to housing clause. It is specifically stated

that:

26(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures,within its available resources, to achieve the progressive realisationof this right.

(3) No one may be evicted from their home, or have their home

demolished, without an order of court made after considering allthe relevant circumstances. No legislation may permit arbitraryevictions.

This right may be relevant in environmental context where, for example, peoplerendered homeless by a natural disaster are provided interim housing facilities.Should they be relocated to reside in an environmentally sensitive area, it mayarguably have a negative impact on the environment. It will subsequently be

98 Section 32(1) of NEMA.

99 See in this regard GLAZEWSKI, supra note 15, pp. 101, 120-123.

322 [Vol. 14:298


required of the judiciary and the relevant State organ to balance the interests of theenvironment and those of the affected community. 00

2.2. 11 The right of access to water andfood clause

Section 27 of the 1996 Constitution, inter alia, provides that:

27(1) Everyone has the right to have access to ...(b) sufficient food and water; and ...

(2) The state must take reasonable legislative and other measures,within its available resources, to achieve the progressive realisationof each of these rights.

Van der Linde and Basson' 0 1 observe that agricultural practices and activities ofsubsistence fishers may have a negative impact on the environment. Some tensionmay thus arise between the obligation on government to provide people with foodand its obligations in terms of Section 24 of the 1996 Constitution. The right ofaccess to water also entails, amongst others, that people are entitled to access toclean drinkable water that is not harmful to their health or well-being. The right ofaccess to clean drinking water may thus significantly be enhanced and supportedby the Section 24 environmental right since water is an important life-sustainingcomponent of a holistically defined environment.102

2.2.12 The limitation clause

Section 36 of the 1996 Constitution contains the general limitation clause thatprovides for those instances where fundamental rights may be limited. Section 36states that:

36(1) The rights in the Bill of Rights may be limited only in termsof law of general application to the extent that the limitation is

100 See, for example, Minister of Public Works and Others v. Kalami Ride EnvironmentalAssociation,2001 3 SA 1151 (CC), Louis J. Kotz6, Local Economic Development and the Possible Conflict ofFundamental Rights, Konrad Adenauer Stiftung Seminar Report, Constitution and Low IV:Colloquium on Local Government Law (2002), pp. 103-107, and supra note 4, p. 262.


102 Ibid.

2008] 323


reasonable and justifiable in an open and democratic society based

on human dignity, equality and freedom, taking into account all

relevant factors, including

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision

of the Constitution, no law may limit any right entrenched in the

Bill of Rights.

It follows from the wording of Section 36 that all fundamental rights, also those

that relate directly or indirectly to the environment, may be limited in certain

instances. An interpretation of the application of Section 36 to the environmental

right, however still beckons consideration by the judiciary.103

3. ADDITIONAL CONSTITUTIONAL PROVISIONS

3. 1 Co-operative Governance

Co-operative governance is provided for by the 1996 Constitution as well as by

various provisions of NEMA and other sectoral environmental legislation, and is

applicable to all environmental governance bodies at national, provincial and local

sphere, as well as to all line functionaries in each sphere.104 The emphasis of co-

operative governance is on co-operation in order to address, inter alia,organisational behaviour by government officials and fragmentation of the

environmental governance regime in South Africa. Co-operative governance is

particularly relevant to the environment since its object is to co-ordinate, align and

103 Supra note 27, p. 50-42. Section 24 also contains its own inherent limitation clause sincereasonable legislative and other measures must be taken or passed for only the three itemslisted in Sections 24(b)(i)-(iii). Kidd, supra note 18, p. 37, observes that if reasonableness isconsidered from the State's perspective, it may very well be argued that only thosemeasures which may not place too great a burden on already limited resources will beconsidered to be 'reasonable'.

104 See for a detailed discussion Louis J. KoTzE, A LEGAL FRAMEWORK FOR INTEGRATED

ENVIRONMENTAL GOVERNANCE FOR SOUTH AFRICA AND THE NORTH WEST PROVINCE

(LLD Thesis, North West University 2006)..

324 [Vol. 14:298


integrate the various silo-based environmental acts, government departmentsresponsible for the environment, and accompanying fragmented processes andprocedures through co-operative strategies.

Chapter 3 of the 1996 Constitution, and more specifically, Section 41(1),provides for the principles of co-operative governance by stating, inter alia, that:

All spheres of government and all organs of state within eachsphere must: ...(e) respect the constitutional status, institutions, powers andfunctions of government in other spheres;(f) not assume any power or function except those conferred onthem in terms of the Constitution;

(g) exercise their powers and perform their functions in a mannerthat does not encroach on the geographical, functional orinstitutional integrity of government in another sphere;(h) co-operate with one another in mutual trust and good faith by

(i) fostering friendly relations;(ii) assisting and supporting one another;(iii) informing one another of, and consulting one anotheron matters of common interest;(iv) co-ordinating their actions and legislation with oneanother;(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another.

Co-operative environmental governance practices may be specifically relevant forsustainable environmental governance efforts in developing countries whereenvironmental governance regimes are characterised by fragmentation.10 5

105 It is stated in this regard that former colonies tend to replicate the judicial, executive,legislative and administrative structures of the former mother land. An imbalance isaccordingly created because when these structures are imposed, they create a wide gulfbetween formal procedures and actual practices, resulting in fragmented structures,processes and governance efforts. Developing countries such as South Africa, furthermoreinherited fragmented and uncoordinated legislation that paid little thought to sustainabilinand an integrated, ecosystem-orientated legal regime that permits a holistic view of theecosystem and of the inter-relationships and interactions within it. Rather than advocatingsustainability and an integrated approach to environmental management and governance,practices, legislation, and policies are essentially concerned with the facilitation of resourceallocation and resource exploitation. These considerations, amongst others, result infragmented governance efforts at domestic level. See further KoTzE, supra note 104, andLouis J. Kotz6, Strategies for Integrated Environmental Governance in South Africa: Toward a MoreSustainable Environmental Governance and Land Use Regime, in Nathalie J. Chalifour, et al. (eds.),

2008] 325


Fragmentation includes: vertical fragmentation between the various spheres of

government; horizontal fragmentation between the different line functions (or

government departments in each sphere); and fragmentation of policies, legislation,

governance tools, processes and procedures. 0 6

Constitutional provisions relating to the South African governmental

structure continually use 'spheres' rather than 'levels' of government. It is argued

that this mainly attempts to move away from the past held notion that there exists

a hierarchical order between spheres that is more, or less powerful than another

tier. Furthermore, it is not an indication that a governmental structure is described

which relates to: "[t]he old traditional stratified three-tier system of a central

government at the top (and therefore the strongest), a second provincial tier in the

middle and a local tier (the weakest) at the bottom."0 7 It rather strives to describe

the very nature of co-operative governance where different spheres are individually

but jointly responsible for different functions. Environmental governance is an

example of an instance where it is required of all three spheres and line functions

of government to establish and enforce legislative measures pertaining to a single

and shared subject matter - namely the environment. The competency to oversee

matters that relate to the environment is thus shared between the different spheres

and line functionaries on the basis that each sphere and line function is responsible

for the particular governance issue that suits best its structure, resources, reach,dimension and nature. The various spheres, line functionaries and government

officials are however under the legislative obligation to foster co-operative

governance practices throughout the execution of their mandates.

3.2 FunctionalAreas, International Law and Constitutional Institutions

Schedule 4 of the 1996 Constitution provides for concurrent national and

provincial legislative competence over environmental matters. These include, inter

alia: issues regarding natural resource management; cultural issues; health

Land Use Law for Sustainable Development (New York: Cambridge University Press,2007).

06 See in this regard, Louis .J. IKotze, Johan G. Nel, Willemien du Plessis and Esme Snyman,Strategies to Integrate Environmental Policy at the Operational Level Towards an Integrated Framework

for Environmental Authorisations (forthcoming in SOUTH AFRICAN JOURNAL OF

ENVIRONMENTAL LAW AND POLICY).

"D7 Gretchen Carpenter Co-operative Government, Devolution of Powers and Subsidiarity:The South African Perspective, Konrad Adenauer Stiftung, Seminar Report: SubnationalConstitutional Governance (1999), p. 51.

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management; industrial and pollution regulation; and planning and land usemanagement.108 Functional areas of exclusive provincial legislative competenceinclude, inter alia: abattoirs; musea; provincial planning; provincial cultural matters;and provincial recreation and amenities.10 9 In addition to these functional areas,exclusive legislative competence is afforded to local authorities in respect ofvarious matters traditionally understood to resort under the local governmentmandate such as local tourism, municipal planning, health services, publictransport, municipal public works, and water and waste management.1 10

Sections 39 and 231-233 of the 1996 Constitution contain provisions thatrelate to international law. These provisions are relevant insofar as the reception ofinternational environmental law (hereafter IEL) into domestic law is concerned.Section 231 of the 1996 Constitution specifically deals with internationalagreements and the signing, ratification and transformation thereof."' This sectionprovides, inter alia, that any international agreement becomes law in the Republicwhen it is enacted into law by national legislation. Secondly, Section 232 of the1996 Constitution grants customary IEL legal force in South Africa unless it isinconsistent with the Constitution or an Act of Parliament.112 A common law

108 Schedule 4. See also Carin Bosman, Louis J. Kotze and Willemien du Plessis, The Failure ofthe Constitution to Ensure Integrated Environmental Management from a Co-operative GovernancePerspective, 19 SA PUBLIc LAW 411 (2004).

109 Schedule 5. Ibid.

110 See part B to schedules 4 and 5.

Section 231 states that:

1) The negotiating and signing of all international agreements is the responsibility of thenational executive.(2) An international agreement binds the Republic only after it has been approved byresolution in both the National Assembly and the National Council of Provinces, unless itis an agreement referred to in subsection (3).(3) An international agreement of a technical, administrative or executive nature, or anagreement which does not require either ratification or accession, entered into by thenational executive, binds the Republic without approval by the National Assembly and theNational Council of Provinces, but must be tabled in the Assembly and the Council withina reasonable time.(4) Any international agreement becomes law in the Republic when it is enacted into law bynational legislation; but a self-executing provision of an agreement that has been approvedby Parliament is law in the Republic unless it is inconsistent with the Constitution or an Actof Parliament.(5) The Republic is bound by international agreements which were binding on the Republicwhen this Constitution took effect.

112 Section 232 provides that customary international law is law in South Africa unless it isinconsistent with the 1996 Constitution or an Act of Parliament.

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presumption furthermore exists which requires a court to interpret legislation in

accordance with established international law.113 This common law presumption is

given effect by Section 233 of the 1996 Constitution, which provides that when

interpreting any legislation, a court must prefer any reasonable interpretation of the

legislation that is consistent with international law over any alternative

interpretation that is inconsistent with international law.'14

Thirdly, even in those instances where South Africa is not legally bound byobligations under an environmental treaty, Section 39(1)(b) of the 1996Constitution compels adversarial bodies, when interpreting the Bill of Rights(including the Section 24 environmental right), to consider international law.115

According to the Constitutional Court decision in S v. Makwanyane and Another,116

public international law includes non-binding (soft), as well as binding law, which

must be considered when interpreting any provisions of the Bill of Rights.International agreements and customary international law thus provide a

framework within which the Bill of Rights and all explicit and incidentalconstitutional environmental provisions must be evaluated and understood.'1 7

Chapter 9 of the 1996 Constitution furthermore deals with institutionsthat support constitutional democracy in South Africa. One of these institutions is

113 John Dugard, International Law: A South African Perspective (Kenwyn: juta, 2000, 2nded.), pp. 48-49. See also The Government of the Republic of South Africa and Others v. Grootboomand Others, 2000 11 BCLR 1169 (CC).

114 See also The A.Zanian Peoples OrganiZation (AZAPO) and Others v. The President of the Republic ofSouth Africa, 1996 4 SA 671 (CC).

115 The following constitutional cases provide some examples where the South AfricanConstitutional Court considered binding as well as non-binding international law wheninterpreting the Bill of Rights: S v. Williams, 1995 3 SA 632 (CC); Ferreira v. Levin NO, 19961 SA 984 (CC); S v. Rens, 1996 1 SA 1218 (CC); CoetZee v. Government of South Africa, 1995 4SA 631 (CC); Bernstein v. Bester, 1996 2 SA 751 (CC); In re Gauteng School Education Bill, 19951996 3 SA 165 (CC); The Government of the Republic of South Africa and Others v. Grootboom andOthers, 2000 11 BCLR 1169 (CC). See further Louis J. Kotze and Linda Jansen vanRensburg, Legislative Protection of Cultural Heritage Resources: A South African Perspective, 1 QUTLAW &JUSTICEJOURNAL 121 (2003), pp. 125-127.

116 S P. Makwanyane and Another, 1995 3 SA 391 (CC); S v. Makwanyane and Another, 1995 6BCLR 665 (CC).

117 For this purpose, decisions of tribunals dealing with comparable instruments, such as theUnited Nations Committee on Human Rights, the Inter-American Commission on HumanRights, the Inter-American Court of Human Rights, the European Commission on HumanRights, and the European Court of Human Rights, and in appropriate cases, reports ofspecialised agencies such as the International Labour Organisation may provide guidance asto the correct interpretation of particular provisions of the Bill of Rights.

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the South African Human Rights Commission (SAHRC). The SAHRC provides

for an informal and non-judicial procedure for the protection of fundamental

rights. It is thus possible that aggrieved individuals may approach the SAHRC

where their environmental right and related fundamental rights are infringed,especially where they opt for a less formal, and inexpensive procedure where

litigation is undesired.118

4. ENVIRONMENTAL LEGISLATION AND CONSTITUTIONALPROTECTION

Constitutional provisions relating to the environment, however comprehensive

they may be, are worthless if they are not afforded enforceable status. The Section

24 environmental right makes specific provision that the right be enforced by way

of 'reasonable legislative and othcr measures. 19 Apart from the array of

constitutional provisions that directly or indirectly relate to environmental

protection, there exists a comprehensive corpus of environmental legislation which

aims to 'operationalise' the environmental right. Although a detailed description of

this regime falls outside the scope of this article, some of the most important acts

are indicated.

NEMA is South Africa's primary environmental framework act and, as

such, aims to give effect to the environmental right in a generic sense. 120 The act

contains comprehensive provisions on, inter alia, sustainability principles,institutions and procedures for co-operative governance; procedures for fair

decision making and conflict management; comprehensive provisions on

environmental impact assessment; procedures for the application of international

environmental law in South Africa; and compliance and enforcement measures,institutions and procedures.12 1

In addition to NEMA, South African environmental legislation also

provides for an array of environmental-media specific, or sectoral acts which

118 See also supra note 27, p. 34.

IS) See paragraph 2.1 above.

120 Supra note 15, pp. 131-161.

121 See in this regard chapters 1-10 of NENA.

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regulate, amongst others, renewable and non-renewable resources, environmental

pollution, agriculture, land use management, planning and cultural heritage.122

5. SOME OBSERVATIONS 23

Generally speaking, it may be derived from the foregoing that the South African

legal order provides for a comprehensive array of provisions that essentially aim to

secure constitutional environmental protection both in a substantive and

procedural sense. This must be lauded as a positive and progressive legal

development. This is especially true when considering the background against

which this development took place and the challenges of the past dispensation it

essentially aims to address. 124 The obvious benefits that constitutional protection

offers, arguably outweigh any potential objections to the constitutional

entrenchment of environmental rights.125 Some of these benefits include: that

environmental protection is elevated to the highest legislative level of protection,since constitutional provisions, at least in the South African scenario, overrideordinary legislation and administrative and judicial rules and decisions; theenvironmental right is arguably afforded the same protected status as other

fundamental rights; and environmental protection is firmly entrenched in the legalorder of the country by way of constitutional affirmation.126 Some commentators

further point out that constitutional protection of the environment may provide a'safety net' in those instances where legislative and regulatory regimes are

122 By way of summary, these acts include, inter alia- the Conservation of AgriculturalResources Act 43 of 1983; the Development Facilitation Act 67 of 1995, the EnvironmentConservation Act 73 of 1989; the National Forests Act 84 of 1998, the GeneticallyModified Organisms Act 15 of 1997; the Hazardous Substances Act 15 of 1973; the MarineLiving Resources Act 18 of 1998; the Mineral and Petroleum Resources Development Act28 of 2002; the National Environmental Management: Air Quality Act 39 of 2004; theNational Environmental Management: Biodiversity Act 10 of 2004; the NationalEnvironmental Management: Protected Areas Act 57 of 2003; the National HeritageResources Act 25 of 1999; the National Water Act 36 of 1998; and the Water Services Act108 of 1997.

123 These comments are made firstly by way of a more general discussion, where after itproceeds to address more specific elements.

124 See paragraph 1 above.

125 See also supra note 26, pp. 281-282.

126 Supra note 26, p. 269.

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incomplete or unenforceable for the sake of environmental protection; thatconstitutional entrenchment may safeguard environmental interests againstunreasonable political intervention since government is (or at least should be)subject to constitutional provisions in a constitutional state; and environmentalrights may arguably also elevate the status of international environmentalinstruments at domestic level. 127

One should however not make the crucial mistake of acceptingconstitutional provisions relating to environmental protection as being necessarily'all good' and not subject to some critique. There are a number of issues whichmay be raised in this regard.128 The first relates to the relationship between theenvironmental right and other constitutional provisions that may be applicable toenvironmental protection.129 Must the environmental right be considered as theprincipal and primary source of constitutional entitlements insofar as theenvironment is concerned? Or should environmental entitlements be seen in termsof numerous constitutional provisions that each contribute to environmentalprotection? In light of the discussion above, it may be derived that both thesescenarios are true for South Africa and that no real conflict exists between thevarious constitutional rights and provisions that directly or indirectly relate to theenvironment. One the one hand it is evident from the explicit wording of Section24 that it constitutes the principal source of any potential constitutionalentitlements relating to the environment. No other constitutional provision, atleast in the Bill of Rights and with exception to the right of access to water,130

explicitly mentions the environment as its primary object of concern. On the otherhand, various other rights and constitutional provisions play a supplementary role

(such as procedural rights which may be employed to enforce Section 24) in giving

127 Supra note 6, pp. 23, 30-32.

128 Apart from the various concerns discussed hereafter, supra note 26, pp. 282-284, points outfurther concerns which must also be considered. These include, inter alia: environmentalrights are sometimes formulated and defined in a vague fashion which renders it difficult toimplement and enforce; formulation of environmental rights are also sometimesambiguous which does not promote legal certainty and predictability; the wide legalstanding usually offered in terms of environmental rights may result in the potential abuseof the judicial process to the detriment of the judiciary and the executive branch ofgovernment; and environmental rights which are too ambitious may result in theimposition of unreasonable demands on limited resources of government, especially indeveloping countries.


130 See paragraph 2 above.

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effect to, and supporting the substantive elements of Section 24. Such an

interpretation arguably supports the notion that constitutional environmental

protection is further enhanced by affording it the 'luxury' of its own directly

applicable right together with subsequent rights, other constitutional provisions

and environmental legislation to enhance and support the substantive elements of

the right. This point also illuminates the consideration that environmental

protection in a constitutional state requires procedural (for example, Sections 32

and 33) and substantive (for example, Sections 24 and 27) measures for it to be

effective and sustainable. These measures should already be set at constitutional

level in terms of which a solid foundation may then be provided to create

legislative measures for enforcement at grass roots level. It is thus proposed that

the one cannot function without the other, and that a mutually supportive effort is

essential to provide for as broad as possible a framework for sustainable

environmental protection.

A second issue relates to the question whether the environmental right is

self-executing or not.131 If the environmental right is self-executing, it will not

necessarily need further environmental legislation to concretise and enforce its

substantive content. It may also mean that the judiciary will arguably fulfil the role

of the primary enforcement institution in the absence of relevant environmental

legislation (this is, for example, the case in India where the judiciary is particularly

activistic in environmental matters and environmental law developments). This

may be particularly problematic since the South African judiciary, in the absence of

a specialised environmental court, does not necessarily have the requisite technical,scientific, financial and managerial resources, expertise and capacity to address

complex environmental issues. 132 It has been proposed that Section 24 is indeed

enforceable without legislative implementation.133 This contention is substantiated

by the argument that the environmental right requires no further legislative

definition than any of the other rights (for example, the right to life)134 in the Bill

of Rights, and hence no specific acts to facilitate legislative implementation and

enforcement.135 Even though numerous environmental acts have been


132 Ibid.

13 Ibid.

134 Section 11.


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2008] ENVIRONMENTAL PROTECTION IN SOUTH AFRICA 333

promulgated since 1996 to 'give effect' to Section 24 and subsequent rights, 13 6 it

may arguably be more correct to argue that courts, through judicial intervention,should set parameters within which rights relating to the environment are to beinterpreted and ultimately enforced by the various environmental governanceinstitutions and the applicable legislation at their disposal. This, at least, seems tobe the current strategy employed by the South African judiciary. Courts have hadsome opportunity since the advent of constitutional democracy to interpretconstitutional provisions relating to the environment, and have done so, in eachinstance, by emphasising the importance of the environmental right and by relyingon specific legislative provisions that are meant to enforce this right.137

Thirdly, it is also observed that the constitutionalisation of environmentalprotection means little if provisions in this regard are not adequately enforced bygovernment. Whilst the South African legal order comprehensively provides forconstitutional protection of the environment on paper, it is questionable whetherthese provisions will be adequately enforced given the limits of governmentresources and other more pressing priorities such as alleviation of poverty andcombating HIV/AIDS. 138 One may only trust that environmental concerns will be

given due recognition and afforded the importance it deserve as a central

136 See also paragraph 4 above.

37 See, amongst others, Director: Mineral Development, Gauteng Region and Sasol lining (Pty) Ltd v.Save the Vaal Environment and Others, 1999 2 SA 709 (SCA); MXinister of Public Works and Othersv. Kyalami Ridge Environmental Association and Another, 2001 3 SA 1151 (CC); BP SouthernAfrica (Pty) Ltd v. MECfor Agriculture, Conservation, Environment and Land Affairs, 2004 5 SA124 (T); Bareki NO and Another v. Gencor Ltd and Others, 2006 1 SA 432 (T); Earthhfe Africa(Cape Town) v. Director-General: Department of Environmental Affairs and Tourism and Another,2005 3 SA 156 (C); Bato Star Fishing (Py) Ltd v. Minister of Environmental Affairs and Tourismand Others, 2004 4 SA 490 (CC); Hichange Investments (Pty) Ltd v. Cape Produce Co (Pty) Ltd t/aPelts Products and Others, 2004 2 SA 393 (E); and Minister of Water Affairs and Forestry v.Stilfontein Gold Mining Company Ltd and Others, 2006 JOL 17516 (W). A discussion of thesejudgments, albeit certainly interesting, falls outside the scope of this article. See MichaelKidd, Greening theJudiciary, 3 POTCHEFSTROOM ELECTRONIC LAW JOURNAL 1 (2006) in thisregard. It is, in concluding this matter, observed that environmental rights should beregarded in an accommodationist philosophical context since any environmental right isonly "one useful part of the normative repertory of environmentalism. It can play a centralrole in justifing and guiding a wide range of environmental programmes and regulations,but it should do this in concert with other environmental norms [such as those set out byissue-specific environmental legislation]." See further supra note 24, p. 283.

138 This scenario may, however, be set to change in the near future since the Department ofEnvironmental Affairs and Tourism (South Africa's lead environmental governanceagency) has recently established the Environmental Management Inspectorate, which willhave as its primary objective to enforce and ensure compliance with environmental laws.See chapter 7 of NE\LA in this regard.


component in enhancing the quality of life, health, and well-being of all South

Africans.

When one focuses on the more specific issues, and in this regard Section

24, one may opine that the inclusion of a subsection that specifically deals with

socio-economic aspects (Section 24(b)) should be lauded as a positive

development. Socio-economic rights, by their very nature, create obligations that

are imposed on government to fulfil and realise certain substantive

components/ideals/objectives of fundamental rights. This, in any developingconstitutional state/democracy, surely is commendable, because it is meant to hold

government accountable in terms of its broader governance obligations, and may,moreover, also contribute to address the effects of past discriminatory practices.

The question, however, is to what extent these rights should be realised and what

specific obligations are created for the South African government in this regard?According to Section 24(b), everyone has the right:

(b) to have the environment protected, for the benefit of presentand future generations, through reasonable legislative and othermeasures that

(i) prevent pollution and ecological degradation;(ii) promote conservation; and

(iii) secure ecologically sustainable development and use ofnatural resources while promoting justifiable economic andsocial development.

It may be derived from the wording of this subsection that it is required fromgovernment to promulgate 'reasonable' legislation and establish 'other measures' toachieve environmental protection for the present and future time. This is a verygeneral and widely-formulated obligation which neither provides a meaning for'reasonableness', nor a description of the nature, ambit and specificworking/application of these measures in terms of this socio economic obligation.'Reasonableness', must surely be interpreted to function as a limitation measure inthat government needs only to fulfil the specific objectives of Sections 24(b)(i)-24(b)(iii) insofar as it has the requisite financial and human resources to do so, and,to a lesser extent, insofar as these objectives fit into the overall policy frameworkof what government sets itself out to achieve within the broader constitutionalgovernance sense (which, incidentally, may be rife with political agendas). One mayderive from the foregoing that the socio-economic flavour of Section 24(b)certainly is a commendable and necessary attribute, as long as it does not remain a

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mere 'flavour'. Instead of applying a restrictive approach in the interpretation of itssocio-economic obligations in terms of the right, government should rather havean extensive approach in its endeavours to realise, as comprehensively as possible,the full scope/ideals/objectives of the section.

Remaining with Section 24, and in so doing, turning to another vital aspectof this right, one is also required to reflect - albeit admittedly in an artificial way -on the anthropocentric nature espoused by this section.139 It is imaginable thatproponents of an ecocentric approach would be of a mind to criticise the (perhapsovertly-emphasised) anthropocentric nature of Section 24. The emphasis of theright, in keeping with the more general tenet of South African environmental law,is on humans and their health or well-being.140 Humans are arguably always theultimate receptors of pollution, and for that matter, of any negative environmentaleffects/impacts, whether caused by the activities of humans themselves or bynatural phenomena beyond human control. Moreover, in a developing countrysuch as South Africa, which is plagued by poverty, disease and inadequate access tonatural and other environmental resources (ironical as it may be, given itsrenowned natural beauty and rich biodiversity), one surely requires an approachwhich purports to first and foremost benefit humans, their health or well-being. Ifthe environmental law regime (and indeed the entire body of law) is not meant toimprove the livelihoods of people (inter alia, health or well-being), then I see littlepoint in having and subscribing to such a legal regime.

In conclusion, the additional provisions of the 1996 Constitution alsodeserve some brief comments. Firstly, the provisions on co-operative governanceare surely a necessary addition to the array of constitutional mechanisms aimed atenvironmental protection. The current environmental governance regime is soseverely fragmented that it may inhibit sustainable, efficient and cost-effectiveservice-delivery efforts by State organs tasked with environmental governanceefforts.141 These provisions should aim to achieve a more coherent, streamlined

139 I am convinced that those concerned with the philosophy of environmental law, have, andwill in the future dedicate the appropriate time to addressing this interesting matter morethoroughly. I am similarly aware that the views expressed here may solicit severe andlegitimate criticism. The discourse continues.

14 See, for example, Section 2(2) of NEMA which states, inter alia, that:

Environmental management [in South Africa] must place people and their needs at theforefront of its concern, and serve their physical, psychological, developmental, culturaland social interests equitably.

141 Louis J. Kotze, Improving Unsustainable Environmental Governance in South Africa: The Case forHolistic Governance, 1 POTCHEFSTROOM ELECTRONIc LAW JOURNAL 1 (2006), and supra note104.

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and fast-tracked governance process as far as environmental matters are

concerned. It must create a framework for a mutually supportive governance effort

amidst fragmented processes, mechanisms, legislation, policies and various

authorities. 142 Secondly, the provisions that relate to the incorporation of IEL into

the domestic legal system appears, again by way of an artificial analysis,1 43 to be

accommodating in the sense that it allows for developments at international level

to (at least) be considered in the domestic legal system. The South African

environmental law regime (as is certainly the case with many other domestic

regimes) is firmly built on, and stems from IEL. The constitutional provisions on

the incorporation of IEL may also ensure that South Africa adheres to, and fulfils

its minimum obligations in terms of IEL instruments and, in so doing, achieve amore sustainable environmental governance effort as part of a collaborative,holistic and integrated international, regional and sub-regional endeavour to

address environmental concerns.

CONCLUSION

South Africa has recently celebrated its tenth year of constitutional and democraticgovernance. From a legal point of view, much has happened in this period insofaras the creation of a democratic society based on the values of human dignity, theachievement of equality and the advancement of human rights and freedoms areconcerned.1'4 This is also certainly true as far as environmental protection isconcerned.

The new constitutional dispensation represents a dramatic differentapproach to environmental protection when compared to the pre-1996 legal order.South Africa currently has a comprehensive set of substantive and proceduralconstitutional provisions and a progressive corpus of environmental legislation thatmay be invoked to further sustainable environmental protection in a country whichis renowned for its natural beauty. However, as is the case with most constitutionalprovisions in developed and developing countries, only future interpretation,application, implementation and enforcement of these provisions will tell to what

142 Schedules 4 and 5 to the 1996 Constitution may not be all that conducive to an integratedgovernance effort since it seems to divide mandates, authorities and consequent processeseven further. See further supra note 108.

143 See my comments, supra note 138.

144 Section 1 of the 1996 Constitution.

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extent South Africa has succeeded in ensuring the achievement of theoreticallywell-established environmental protection measures in the current constitutionaldispensation.

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