1. Precautionary Measures to Avoid Impoverished Interpretation of South Africa’s Constitutional Environmental Right: The Place of Poverty in Applying the ‘Reasonability Test’ November 2008 Anél du Plessis anel.duplessis@nwu.ac.za NWU (Potchefstroom), South Africa anel.duplessis@nwu.ac.za

2. Introduction Poverty, love and ethics No universally satisfying definition of poverty ‘Poverty’  Human Development  Environment Poverty in South Africa Question: What role should poverty play in judicial interpretation and/or assessment of the constitutional environmental right?

3. Poverty and Inequality in SA ‘Relative poverty’ at heart of SA discourse ‘Poverty traps’ especially in rural areas SA’s Gini coefficient amongst highest in the world Higher poverty rates than many countries with comparable average income levels Persisting inequality: ownership, income, resources, skills etc

4. S 24 : Poverty (Interface) Hypothesis: poverty and environment have mutual impact Poverty cannot be separated from scholarly or judicial interpretation/assessment of environmental law What role does/should poverty play in SA’s constitutional environmental right (s 24)?

5. S 24 (Constitution of the Republic of South Africa, 1996) 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 present and future generations, through reasonable legislative and other measures that: (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

6. S 24 Enforceable, anthropocentric right with substantive content versus mere directive principle of state policy Horizontal and vertical application Defensive right and right on state performance in one In both capacities/contexts relevant to poverty

7. Section 24(a) Environment not detrimental to: –Health –Well-being ‘Health’ and ‘well-being’ two loaded concepts Relative poverty challenges mental and physical integrity and health

8. “The poor are more sick, less educated, and have worse access to basic infrastructure than the non-poor. Mortality rates are typically twice as high for poor men as they are for non-poor and three times as high for poor women as for non-poor ones.” World Bank (2001) “Poor people live in unhealthy environments. Health risks arise from poor sanitation, lack of clean water, overcrowded and poorly ventilated living and working environments and from air and industrial pollution.” UN World Population Report (2007)

9. Section 24(b) Positive action required on the part of state Taking of ‘reasonable legislative and other measures’ No reference to ‘within its available resources’ Failure to take measures (adequate measures)  violation of right, basis for constitutional claim

10. Section 24(b) Reasonable legislative and other measures required Statute law, generally, to be designed to prevent or minimise poverty Simultaneous focus on programmes, policy and implementation “Other measures” – inexhaustible list of possibilities State should do ‘whatever is necessary’  related to ‘minimum core’ of enviro right

11. Reasonability Test Special standard of scrutiny Developed by SA Constitutional Court in enforcement of socio- economic rights Shifting standard of scrutiny Employed to judicially evaluate existence, content, implementation and results achieved, by law, policy and programme development Generic list of features established from past application of test State has margin of appreciation in fulfilling socio-economic rights

12. Reasonability Test Budgetary constraints no valid defense –Certification of the Constitution of the Republic of South Africa –Mazibuko and Others v The City of Johannesburg and Others Culture of justifying poor environmental infrastructure and other challenges for economic reasons only, could be seriously affected by the application of the reasonability test on state’s fulfilment of S 24 environmental right

13. Testing ito S 24 Court to use reasonability test only to estimate whether measures are capable of facilitating realisation of enviro right Required to establish minimum core of S 24 Proposed to include, inter alia: *measures to alleviate poverty *measures to address negative brunt that settlement and livelihoods of poor may have on natural resource bases’ *measures to improve and maintain the living environments of poor people

14. Way forward Constitutional Court to : –Establish minimum core –Apply reasonability test albeit to test for: Effectiveness (trite) Human interests (proposed) in relation to environmental right Similar challenge applies to foreign judiciaries in guiding their executive authorities

15. (T)he minimum core of a right … is not to be defined with reference to specific groups, but is a wholly general notion applicable across the human species … (T)he minimum core is to be specified in relation to the minimum interests we all share. It is the vulnerable who are less able to meet these interests by their own means and therefore require greater assistance from the state. Bilchitz (2007)

16. THANK YOU