South African environmental law describes the legal rules in South Africa relating to the social, economic, philosophical and jurisprudential issues raised by attempts to protect and conserve the environment in South Africa. South African environmental law encompasses natural resource conservation and utilization, as well as land-use planning and development. Issues of enforcement are also considered, together with the international dimension, which has shaped much of the direction of environmental law in South Africa. The role of the country's Constitution, crucial to any understanding of the application of environmental law, also is examined. The National Environmental Management ActAct 107 of 1998. (NEMA) provides the underlying framework for environmental law.
The concept of the "environment" The National Environmental Management Act (NEMA)Act 107 of 1998. defines "environment" as the surroundings within which humans exist. These are made up of:
the land, the water and the atmosphere of the earth; micro-organisms, plant and animal life; any part or combination of the first two items on this list, and the interrelationships among and between them; and the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being.s 1.
In addition, the Environment Conservation ActAct 73 of 1989. defines the environment as "the aggregate of surrounding objects, conditions and influences that influence the life and habits of man or any other organism or collection of organisms."s 1.
Scope of environmental law 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."9. They are:
land-use planning and development; resource conservation and utilisation; and waste management and pollution control.
Legal norms and standards "Not every legal norm relating to the environment," observes Rabie, "is regarded as constituting environmental law. Environmental law presupposes that the norm in question is aimed at or is used for environmental conservation."
"Environmental conservation" describes the conservation of natural resources and control of environmental pollution. This is done through a process known as "environmental management." Environmental-law norms relate to the management of the environment.
Emerging international norms and concepts A few of the emerging international norms and concepts in environmental law are noted below, together in some cases with a discussion of their application in South Africa.
Sustainable development
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. The 1983 World Commission on Environment and Development, convened by UN General Assembly, provided the most-cited definition of the concept: "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." This aspiration contains within it two key concepts:
"the concept of needs, in particular the essential needs of the world's poor, to which overriding priority must be given;" and "the idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs."
The concept encompasses more than merely the environment, so for present purposes the focus should be on environmental sustainability: the goal of utilising the environment in a way which both meets human needs and ensures the environment's indefinite preservation.
NEMA defines "sustainable development" as "the integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations."s 1(1)(xxix). NEMA provides further that "sustainable development requires the consideration of all relevant factors including:
"that the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied; "that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; "that the disturbance of landscapes and sites that constitute the nation's cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; "that waste is avoided, or where it cannot be altogether avoided, minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner; "that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; "that the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised; "that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and "that negative impacts on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied."s 2(4)(a).
Intergenerational equity
Intergenerational equity is, as the name implies, the concept of equality between the generations—children, youth, adults and seniors. In discussions of climate change especially, people are often exhorted to think of the legacy they are leaving their children and grandchildren.
Environmental justice
NEMA provides that "environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons."s 2(4)(c).
Environmental rights This term does not imply that "environment' has rights in South African Law but rather the right of people to an environment that is safeguarded, in fulfilment of the government's public trust duties, for current and future generations.
Section 24 of the South African Constitution states that "everyone has the right:
"to an environment that is not harmful to their health or well-being; and "to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that "prevent pollution and ecological degradation; "promote conservation; and "secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development."
Public trust doctrine
"The environment," according to NEMA, "is held in public trust for the people. The beneficial use of environmental resources must serve the public interest and the environment must be protected as the people's common heritage."s 2(4)(o).
Precautionary principle
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."s 2(4)(a)(vii).
Preventive principle Underlying this principle is the idea that only to be reacting to crises, when they happen, is far more expensive (and in more than just the pecuniary sense) than forestalling or preventing them before they happen. This is the fundamental notion behind laws regulating the generation, transportation, treatment, storage and disposal of hazardous waste, and laws regulating the use of pesticides. It is also the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimise the production of hazardous waste and to combat illegal dumping. The preventive principle was an important element, too, of the European Community's Third Environmental Action Programme, adopted in 1983.
In South Africa, NEMA requires "that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied."s 2(4)(a)(ii).
Polluter-pays principle
This principle, widely understood to be commonsensical and intuitively fair, is analogous to the slogan "you break, you pay." It makes the party responsible for producing the pollution responsible for paying for the damage done to the natural environment. It has attained the status of a regional custom, because of the strong support it has received in most OECD and EC countries. In terms of Principle 16 of the Rio Declaration,
National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the costs of pollution, with due regard to the public interests, and without distorting international trade and investment.
NEMA echoes this:
The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.s 2(4)(p).
Local-level governance Questions about how environmental decisions are made, and about who makes them, are questions of environmental governance. This lies at the heart of environmental law and policy. Of especial relevance in the context of South African law are Schedules 4 and 5 of the Constitution.
Common but differentiated responsibility The principle of common but differentiated responsibility (CBDR) is an important principle of international environmental law, explicitly formulated in the Principle 7 of the Rio Declaration:
In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. 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 regulating environmental management Legislation, from an environmental point of view, may be divided into six categories: legislation aimed exclusively at environmental management, like the National Parks Act and the Atmospheric Pollution Prevention Act; legislation calculated to promote an environmental object, like the Mountain Catchment Areas Act; legislation not specifically directed at environmental management, but including individual provisions aimed at environmental management, like the Nuclear Energy Act, the Sea-Shore Act and the National Roads Act; legislation not aimed at environmental management, but including provisions that are directly or potentially of environmental significance, like land-use planning legislation and the Customs and Excise Act; legislation not aimed at environmental management, but rather at environmental exploitation (like the old mining legislation and legislation promoting afforestation and fishing, and the development of townships); and, finally, Legislation with no environmental relevance .
Sources
There are a number of diverse sources of South African environmental law:
International law – Both international customary law and international conventions function as sources of South African environmental law.