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'lecture 8

South African environmental law




Next time: • Paterson & Kotze (eds) Chapter 7 Administrative Justice • Minister of Environmental Affairs & Tourism & others v Phambili Fisheries (Pty) Ltd & another 2003 another 2003 (6) SA 407 (SCA). • Bato Star Fishing (Pty) Ltd v Minister of  Environmental Environmental Affairs and others 2004 (4) SA 490 (CC). • Focus on legitimate expectations THE CONSTITUTION The Constitution enshrines environmental rights in section 24, providing that “everyone” has them. In so doing, it extends the ancient Roman law private neighbour-law principle into the realm of public law: While a plaintiff’s neighbour-law right in Roman law flowed from his individual right as the owner of the adjoining property, the environmental right is available to all persons. This view was corroborated in Minister of  Health & Welfare v Woodcarb (Pty) Ltd and Another  1996 (3) SA 155 (N), which found an infringement of the right as enshrined in section 29 of the interim Constitution, then in effect. THE CONSTITUTION Everyone has the right in terms of the Constitution to an environment that is not harmful to their health. This goes beyond the right of access to healthcare, established in section 27 of the Constitution. A particular environment may be damaging to one’s health and yet not on infringe on one’s right of access to healthcare. In Verstappen v Port Elizabeth Town Board and Others 1994 (3) SA 569 (D), where the plaintiff sought an interdict on the ground that she was suffering health problems due to the local authority’s dumping waste on the adjoining property without the requisite permit, she might have invoked section 24 but did not; obviously she could not have invoked section 27, and did not. THE CONSTITUTION The right to an environment that is not harmful to one’s “well being,” the second aspect of subsection 24(a), “elevates the right beyond health but to a not readily determinable realm,” writes Glazewski. He takes the word “well-being” to imply “that the environment has not only an instrumental value [...], but that in addition, aspects of the environment [...] are derserving of  conservation for their intrinsic value” (77). The ambit of “well-being” is potentially limitless; obviously it is relevant to pollution. It was invoked in Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products and Others 2004 (2) SA 393 (E), where Leach J opined, “One should not be obliged to work in an environment of stench and, in my view, to be in an environment contaminated by H2S [as it was in casu] is adverse to one’s ‘well-being’” (415D). It may be argued that constitutes “well-being” is relative to the nature and personality of the person seeking to assert this right, and that it will be decided on the facts of the particular case. Leach J concurs: “The assessment of what is significant involves, in my view, a considerable measure of subjective import” (414I). THE CONSTITUTION 1. The Environmental Right – s.24(b) The meaning of “reasonable legislative and other measures” generally was considered in the context of the constitutional right to housing in Government  of RSA & Others v Grootboom & Others 2001 (1) SA 46 (CC): “Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the Executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the State’s obligations. The program must also be reasonably implemented. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the State's obligations” (Para 42). Glazewski argues that “the government has clearly complied” with the constitutional injunction to take legislative measures “in enacting a plethora of  environmental legislation and accompanying regulations since 1994” (79). THE CONSTITUTION 1. The Environmental Right – s.24(b) The meaning of “reasonable *...+ other measures” was considered in the context of the environmental right in BP Southern Africa (Pty) Ltd v  MEC for Agriculture, Conservation & Land Affairs 2004 (5) SA 124 (W), where the court pointed out that “section 24(b) expressly obliges the State to take reasonable legislative and other measures to protect the environment” (142E-F) It held thus: “Measures adopted by the State must be capable of facilitating the realisation of the right. However, the precise contours and content of the measures to be adopted are primarily a matter for the Legislature and the Executive. They must, however, ensure that the measures they adopt are reasonable. It is the Court’s duty to subject the reasonableness of these measures to evaluation while constantly keeping in mind that courts are generally ‘ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community’” (142J143A). THE CONSTITUTION 1. The Environmental Right  – s.24 As to “measures that prevent pollution and ecological degradation,” the question arises: What degree of pollution should be tolerated in the context of a developing country like South Africa? This issue was highlighted in Hichange Investments, where Leach J considered what constitutes “significant pollution. He answered, as we have seen, that “the assessment *...+ involves *...+ a considerable measure of  subjective import, and referred to the right to an environment that is not harmful to one’s well-being: “An environment of stench [...] contaminated by H2S is adverse to one’s ‘well-being’” (415D). THE CONSTITUTION 1.The Environmental Right  – s.24 As for “measures that [...] promote conservation,” these are covered by “the various statutory obligations on the state contained in the vast array of  environmental statutes and regulations enacted before and after 1994” (Glazewski 80). THE CONSTITUTION 1. The Environmental Right  – s.24 As for “measures that [...] secure ecologically sustainable development and use of natural resources while promoting  justifiable economic and social development,” this must be seen in the context of the inclusion of socio-economic rights in the Bill of Rights as a whole; moreover, the socioeconomic character of section 24(b) may have to be balanced in particular circumstances against other socio-economic rights, in particular the right to housing, the right of access to health care, food, water and social security. In Minister of Public  Works v Kyalami Ridge Environmental Association & Others 2001 (7) BCLR 652 (CC), where the government sought to establish a transit camp for people rendered homeless as a result of severe flooding, the court found that, in effect, the government’s duty to fulfil its obligations in terms of the right to housing trumped other legal claims, including the environmental concerns of the respondents. THE CONSTITUTION 1. The Environmental Right  – s.24 The notion that sustainable development is an inherent factor to be considered in environmental decision-making was specifically endorsed in BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation & Land Affairs 2004 (5) SA 124 (W): “The concept of  ‘sustainable development’ is the fundamental building block around which environmental legal norms have been fashioned, both internationally and in South Africa, and is reflected in section 24(b)(iii) of the constitution. “Pure economic principles will no longer determine in an unbridled fashion whether a development is acceptable. Development, which may be regarded as economically and financially sound, will in future be balanced by its environmental impact, taking coherent cognisance of the principle of  intergenerational equity and sustainable use of resources in order to arrive at an integrated management of the environment, sustainable development and ” THE CONSTITUTION 2. Locus standi  – s.38 The word “everyone” in the right also raises the issue of locus standi , traditionally a serious obstacle to individual litigants or NGOs concerned with the implementation and enforcement of  environmental laws, or those wishing to assert environmental rights or defend environmental actions. South African law, in common with many other legal systems, required that, in order to have legal standing to challenge administrative lawfulness, an individual must show that he has some degree of personal interest in the administrative action under challenge. Section 38 of the Constitution has dramatically changed this. The following persons, inter alia, may approach a competent court: •anyone acting as a member of, or in the interest of, a group or class of persons (s 38(c)); •anyone acting in the public interest (s 38(d)); and •an association acting in the interest of its members (s 38(d)). Most importantly, litigation may now also be brought in the public interest. THE CONSTITUTION 3. The Property Clause  – s.25 The link between environmental concerns and property rights, specifically land ownership, is “fundamental.” (Glazewski 82). Property rights are not absolute; owners may not use their property as they please. The common-law doctrine sic utere tuo ut alienum non laedas—use your property in a way which does not harm another—is the basis of the law of neighbours. THE CONSTITUTION 3. The Property Clause – s.25 A central question or concern is the extent to which private property rights may be limited in the public environmental interest, and when compensation is triggered if they are so limited. This tension has always been present in South African law; it is now more acute in view of the relatively recent recognition of environmental rights. In Diepsloot Residents’ & Landowners Association & Another v   Administrator, Transvaal 1994 (3) SA 336 (A), a landowners’ association challenged the administrator’s decision to settle squatters near a residential area, on the grounds that this decision constituted an unwarranted interference with its property rights. The landowners contended that these property rights included an environmental component: The settlement would pollute the water and air. Their application was dismissed, however, on numerous grounds. THE CONSTITUTION 3. The Property Clause – s.25 In BP Southern Africa v MEC for Agriculture, Conservation & Land Affairs 2004 (5) SA 124 (W), the court found that “the constitutional right to environment is on a par with the rights to freedom of trade, occupation, profession and property entrenched in sections 22 and 25 of the Constitution. In any dealings with the physical expressions of property, land and freedom to trade, the environmental rights requirements should be part and parcel of the factors to be considered without any a priori grading of the rights. It will require a balancing of rights where competing interests and norms are concerned.” THE CONSTITUTION S.33  – Just administrative action (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.