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

Contents Introduction Importance of Realising and Evolving s24 Relational Character of s24 S24 as A Socio-Economic Right Progressive Realisation S24 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 S7(1): ‘cornerstone of democracy’ S7(2):state has a duty to respect, protect, promote, fulfill and give content to these fundamental rights Uphold, Solve, Interpret and Contribute Reading s24 with s7(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 s24 Rights based jurisprudence and indirect case law South African environmental law and governance framework is premised on the s24 environmental right Notion of ‘entrenchment’ right to a healthy environment NEMA enacted to give content to the s24 right Evolution of the bundle of environmental rights is of the utmost importance

Relational Character of s24 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

S24 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 s24 by clarifying the scope and concept of right Generous interpretation of s24

Progressive Realisation S7 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

S24 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 s24

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