"[5] Prof Jan Glazewski of the University of Cape Town takes the view that environmental law encompasses the following three "distinct but interrelated areas of general concern.
Sustainable development seeks to combat the idea that, while moving away from traditional sources of energy, civilisation would be forced to sacrifice growth, innovation, and progress.
"[8] NEMA provides further that "sustainable development requires the consideration of all relevant factors including: Intergenerational equity is, as the name implies, the concept of equality between the generations—children, youth, adults and seniors.
"[12] Principle 15 of the Rio Declaration provides as follows: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.As noted above, NEMA requires "that a risk-averse and cautious approach [be] applied, which takes into account the limits of current knowledge about the consequences of decisions and actions.
The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.Legislation, from an environmental point of view, may be divided into six categories: There are a number of diverse sources of South African environmental law: There are, broadly speaking, two bases in jurisprudence for protection of the environment: The anthropocentric approach finds some support in the common law of South Africa.
NEMA additionally provides that "environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.
In Verstappen v Port Edward Town Board,[27] where the plaintiff sought an interdict on the ground that she was suffering health problems due to the local council's dumping waste, without the requisite permit, on the adjoining property, she might have invoked section 24, but did not.
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 socio-economic concerns.Section 25 of the Constitution guarantees property rights, which Glazewski states is fundamentally linked to environmental concerns.
The court rejected the Director's argument that section 9 of the Minerals Act excluded the application of the audi alteram partem rule, finding that the respondent should have been granted a hearing when the licence decision was made.
Chief Justice Corbett, quoting with approval Lord Denning's judgment in Ridge v Baldwin, held that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations.
(ii) The expectation must be reasonable [....] (iii) The representation must have been induced by the decision-maker [....] (iv) The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate.Applying the above principles to the case in point, the court dismissed the argument that the appellants had a legitimate expectation on the ground that the various statements made by government officials regarding the allocation of fishing quotas did not amount to statements which were "clear, unambiguous and devoid of relevant qualification."
They may do so, too, if "the action itself contravenes a law or is not authorised by the empowering provision," or if it "is not rationally connected to Finally, judicial review is possible if Section 8(1) of PAJA provides for remedies in judicial-review proceedings in the following terms: "The court or tribunal, in proceedings for judicial review [...], may grant any order that is just and equitable, including orders In the environmental context, litigation around the enforcement of statutory duties arises in two broad ways: Regard must be had to whether the provision imposing the duty is peremptory or permissive.
[59] In Wildlife Society of Southern Africa v Minister of Environmental Affairs and Tourism of the Republic of South Africa, the court held, as regards the merits of an application for a mandamus compelling the State to comply with its statutory obligations to protect the environment, that the first respondent's opposition to the application rested largely upon the fact that there was in existence a Task Group which had been established to tackle the issue.
The court found, however, that the Task Group was a non-statutory, advisory body of uncertain nature and duration, whose actions had in any event fallen short of establishing that the provisions of section 39(2) of the Transkei Environmental Decree were being enforced by first respondent.
[60] The Court held, accordingly, that the applicants were entitled to an order that the first respondent enforce the provisions of section 39(2) of the Decree,[61] which were, as "degree" implies, peremptory rather than permissive.
An example of the second scenario is Verstappen v Port Edward Town Board, where the plaintiff sought an interdict on the ground that she was suffering health problems, as the local authority was dumping waste on the adjoining property without the requisite permit.
However, this role has to a degree been undermined by significant overlap in their respective competences, which, during the course of the past decade, has resulted in legislative and institutional fragmentation, both within and between the different spheres of governance.
This fragmentation has in turn led to functional duplication and confusion, an undesirable reality in a country with significant resource constraints.Co-operative governance is accordingly regarded as "a necessary precursor" for the development of an effective environmental compliance and enforcement effort in South Africa.
The members of the Cabinet must, inter alia, act in accordance with the Constitution and provide Parliament with full and regular reports concerning matters under their control.
The Constitution also enables relevant provincial executive authorities to intervene in local governance, where a municipality refrains from or fails to fulfil an executive obligation in terms of legislation, by taking any appropriate steps to ensure fulfilment of that obligation: "A typical example would be where provincial legislation compels all local governments within the province to draft a cultural heritage resources management plan, and a particular municipality fails to do so.
The manner in which these functions are grouped per department varies between the provinces: These provincial authorities administer They have "a key role to play,"[75] therefore, in environmental compliance and enforcement.
The question considered by Cameron J in the Constitutional Court was whether or not the override provision, applied in casu, gives national government the competence to enact legislation on various facets of the liquor trade.
"In summary," writes Glazewski, in considering the question of who does what, the starting point is that national level of government enjoys exclusive competence with respect to all matters which are not expressly assigned to the concurrent or exclusive competence of provincial legislatures, but the provinces have only those powers and functions specifically allocated to them by the Constitution.The Constitution specifically prescribes a set of principles of cooperative governance and intergovernmental relations.
Its specific objectives include When read together with the conflict-resolution procedures prescribed in NEMA, IRFA "should significantly contribute to resolving disputes arising as a result of environmental governance inefficiencies" (Paterson and Kotze 124).
Historically, wildlife and conservation authorities adopted a rationalist approach, relying on the deterrence theory, with enforcement being very much secured through arrest and criminal prosecution.
There is a current trend inherent in the conservation sector," observe Paterson and Kotze, "to entrench a more normative approach focusing on cooperation and community-based participation.
"[89] The High Court has recently confirmed, in Khabisi v Aquarella Investment,[90] that the State and its organs, and their representatives, have an "onerous constitutional mandate to promote conservation and protection of the environment.
Cumulatively, this legislation prescribes concrete statutory mechanisms for both encouraging and compelling compliance with, and facilitating the enforcement of, South Africa's contemporary environmental regime.
Agenda 21, one of the primary international environmental instruments, expressly recognises that building strong institutions, and prescribing dedicated compliance and enforcement programmes, are important prerequisites for achieving the goal of sustainable development.
In addition, a number of specific international environmental instruments, to which South Africa is a party, require the government to strengthen domestic compliance and enforcement capacity, in order to execute effectively the obligations set out therein.