Exposing the Cracks in the Armour Structural deficiencies

Exposing the Cracks in the Armour: Structural deficiencies of Environmental Litigation

Contents � Introduction � Importance of Realising and Evolving s 24 � Relational Character of s 24 � S 24 as A Socio-Economic Right � Progressive Realisation � S 24 as Minimum Core Right � Environmental right and the Underprivileged � The Evolution of Sustainable Development in South Africa � SA & International meaning of sustainable development � Principle of integration � Meaning of Sustainable Development: Confusion over principle and application � Water Resource Management and Sustainable Development � Deficiencies in Environmental Jurisprudence � Judicial Inconsistencies � Administrative Dominance � Environmental Knowledge Breakdown � Departmental Failure � Water Jurisprudence Failure � Approaches � Environmental Court � Conclusion

Introduction �S 7(1): ‘cornerstone of democracy’ �S 7(2): state has a duty to respect, protect, promote, fulfill and give content to these fundamental rights �Uphold, Solve, Interpret and Contribute �Reading s 24 with s 7(2) of the Constitution �The evolution of constitutional environmental law �The court has an obligation to look after the environment �Historically a multitude of opportunities to contribute and interpret �Lack of meaningful jurisprudence emanating from environmental litigation �Environmental jurisprudence is seldom dealt with directly �Water is the hardest hit resource, yet most underdeveloped

Importance of Realising & Evolving s 24 �Rights based jurisprudence and indirect case law �South African environmental law and governance framework is premised on the s 24 environmental right �Notion of ‘entrenchment’ right to a healthy environment �NEMA enacted to give content to the s 24 right �Evolution of the bundle of environmental rights is of the utmost importance

Relational Character of s 24 �Recognition of substantive link to socio-economic rights �Extension of Environmental rights �Right to water directly affected relational right �Link to health and well being �Issues of poverty �Mutually reinforcing vicious cycle

S 24 as A Socio-Economic Right �Constitutional commitment to socio-economic rights �Right to a healthy environment is seen as a universally accepted international socio-economic right �Courts duty to enhance and promote s 24 by clarifying the scope and concept of right �Generous interpretation of s 24

Progressive Realisation �S 7 constitutional commitment �Progression and evolution of the law is crucial to development �Goes beyond achieving the minimum essential level of a right �Grootboom and TAC clarification �Standard of reasonableness not being satisfied �Failure particularly evident in water related disputes

S 24 as Minimum Core Right �Far reaching consequences �Obligation to fulfill basic minimum core element �‘Minimum essential level’ �‘No excuses barrier’ to the basic fulfilment of the right �Definition of right at core level required to meet basic object of the right

Environmental right and the Underprivileged �NEMA makes specific mention of the underprivileged �Environmental governance has a strong social element �Improvement to environmental ideal and affords more protection �Environmental squalor and poverty are inextricably intertwined, vicious cycle �Vulnerable to environmental degradation �Rural reliance on stable environment �Sustainable development approach key to poverty eradication

The Evolution of Sustainable Development in South Africa �SD ingrained in all environmentally driven legislations �Courts have a duty to initiate the realisation of SD �Fuel Retailers case is a prime example of expansion �SA & International meaning of SD �SD described by way of a set of principles under SA law �Principle of integration �Increasing mandate of officials and creation of policy �Meaning of SD: Confusion over basic principle and application �History of confusion of environmental legislation �Save the Vaal Environment/Kyalami Ridge �Water Resource Management and SD �IWRM intrinsically linked, yet underused

Deficiencies in Environmental Jurisprudence �Trend of difficulties in developing concise principles �Various reasons behind this restricted development • Primarily administrative and procedural • Lack of understanding and willingness �Important questions arise when enquiring into these deficiencies • Is SA keeping up? • Furthering the plight? • Need for environmental court? �Future increase in environmental litigation

History of Judicial Inconsistencies �Consistent decision-making with primary principles paramount �Lack of use and misinterpretation of environmental legislation and principles � Kyalami/Merebank/All the Best/Capital Park Motors/Bareki/HTF Developers �Valuable opportunities at first interpretation �One step forward two steps back �Instill a balanced approach/application

Administrative Dominance �Arguing on well-known administrative rules perpetuates the cycle of underuse �Right to utilise legislatively enacted environmental tools �Inhibition of development through blanket veil judgment �Judgments treating environmental principles a peripheral �Underutilised bundle of extensive environmental laws �Earthlife Africa/South Durban Community/ Lloyd

Environmental Knowledge Breakdown �Influx of environmental legislation has caused a rapid development �Fall outside the realm of familiarity �International origin yet uniquely South African �Complexity of environmental matters �Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts Products and others �Disastrous cumulative impacts �Complicated judicial responsibility �Ultimately undermine s 24

Departmental Failure �Flawed cycle of environmental protection � Confusion between departments and the allocation of functions �Administrative irregularities and lack of information �Difficult to successfully prosecute

Water Jurisprudence Failure �Water ecology is extremely sensitive �Evolution of water protection jurisprudence in South Africa has been slow �NWA is a comprehensive, yet complicated �IWRM is the spearhead of the NWA’s transformative water mandate �Equity and Sustainability �Concept in need of expansion

Approaches �Widest possible definition and application �Approach that stimulates change �Application of the contextual approach and sustainable development �Encouraging a rich law of precedent �Responsibility of the Constitutional Court

Environmental Court �Knowledgeable decision-makers �Lead to improved decision-making capability and improved environmental jurisprudence �Meaningful and concise reasoning �Faster turnover, encouraging higher frequency �A number of failed attempts �Worthwhile addition?

Conclusion �Transformation and positive progression �Enormous responsibility is placed on South African courts �A more definite standard required � Courts have a clean slate �Quality not quantity �Cumulative responsibility �Importance of development of environmental principles �Evolution of environmental law

Thank You