A note on licences as property: Some implications for the South African water regulatory regime

A note on licences as property: Some implications for the South African water regulatory regime

Authors Germarié Viljoen

ISSN: 2616-8499
Affiliations: Senior Lecturer in Law, North West University
Source: South African Journal of Environmental Law and Policy 2017, p. 195 – 216

Abstract

A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. With the legal transformation, the traditional exclusive private law ownership-object approach to water resources evolved into a rights-based approach. As South Africa is regarded as one of the most water scarce countries in the world, where water restrictions are being imposed on inter alia farmers and industries due to the lingering drought, the importance of investigating the nature of water use rights within the new water regulatory regime is self-evident. This article seeks to determine whether the regulatory regime for the sale of liquor in the Eastern Cape, as deliberated upon in Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism 2015 (6) SA 125 (CC), may provide insight into implications for licence holders in the new water regulatory regime of South Africa.

Protected areas law, mining and the principle of non-regression – a South African perspective

Protected areas law, mining and the principle of non-regression – a South African perspective

Authors Alexander Paterson

ISSN: 2616-8499
Affiliations: Professor, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town
Source: South African Journal of Environmental Law and Policy 2017, p. 142 – 194

Abstract

Protected areas provide numerous essential ecological, climatic, cultural, social and economic functions. Not surprisingly, the international community has set targets for both protected areas coverage and management effectiveness, crucially reflected in Aichi Target 11 agreed to by parties to the Convention on Biological Diversity in 2010. South Africa is some way off meeting its domestic contribution towards the attainment of these targets by the 2020 deadline. The government can ill afford to allow the current coverage or management effectiveness of its protected areas to regress in any manner. However, if recent events are anything to go by, the above reality is not shared by all sectors of the South African government. The past few years have seen the controversial grant of prospecting and mining rights within or in close proximity to several of South Africa’s protected areas. These mining activities hold significant potential to regress the conservation objectives of protected areas. This notion of regression is subject to increasing attention of legal scholars, advocating for recognition of the principle of non-regression as a new principle of environmental law; and highlighting the key role it could play in both halting the ‘systematic regression’ of biodiversity laws and promoting the attainment of global and domestic biodiversity targets, including Aichi Target 11. Within this context, the article explores the extent to which the principle of non-regression has, or perhaps could further, influence the form, content, interpretation and application of South Africa’s protected areas legislation with a view to precluding the regressive impact of mining activities on the country’s terrestrial protected areas.

Regulation of Chinese infrastructure companies’ environmental and social impacts in host countries overseas: A study of the Chinese-built standard gauge railway project in Kenya

Regulation of Chinese infrastructure companies’ environmental and social impacts in host countries overseas: A study of the Chinese-built standard gauge railway project in Kenya

Authors Bingyu Liu

ISSN: 2616-8499
Affiliations: None
Source: South African Journal of Environmental Law and Policy 2017, p. 101 – 141

Abstract

China has rapidly become one of the world’s biggest overseas investors, and has increasingly encouraged more companies to go abroad. As part of China’s ‘One Belt One Road’ Initiative, Kenya’s Standard Gauge Railway (SGR) aims to promote trade and investment for Kenya and other countries in Eastern Africa. The railway construction is done by the China Road and Bridge Corporation (CRBC). Since the construction of the project, the SGR has sparked controversy on its community and environment impact, contracting practices, and financing arrangements. This article will analyze the environmental and social impact of the second phase of SGR’s construction (Mombasa-Nairobi)on the local communities and people. Specifically, the article addresses three questions: What is the CRBC’s environmental and social performance in the Mombasa-Nairobi SGR project in practice? What are the most important factors that influence the CRBC’s environmental and social behavior? What are the legal implications of the SGR project on other Chinese infrastructure building investments overseas in the future? This research was conducted through in-depth interviews with over 30 stakeholders, extensive review of publicly available documents, and two field visits to project sites between September and December 2016. The article uses the Mombasa-Nairobi SGR project as a case study to show how this Chinese state-owned company has tried to tackle environmental and social pressures, comply with Kenyan domestic and international environmental standards, and fulfill its corporate social responsibilities during construction. It examines the role of different stakeholders, including the Kenya government, the Chinese government, the China Export-Import Bank, the CRBC and third-party monitoring parties during the environmental and social impact assessment (ESIA) stage of the project. The article then examines the regulatory factors that have asserted the greatest impact on the CRBC’s environmental behaviors, and hence, the implication of this project for Chinese infrastructure construction companies in the future. The article will show that the SGR case, in demonstrating good cooperation between the home country government, host country government, financial institution, overseas infrastructure company and third-party monitoring parties involved in the project, can serve as a model for future Chinese infrastructure investment in African countries.

Challenges and strategies in the regulation of industrial pollution in Ethiopia: An overview

Challenges and strategies in the regulation of industrial pollution in Ethiopia: An overview

Authors Tsegai Berhane Ghebretekle

ISSN: 2616-8499
Affiliations: None
Source: South African Journal of Environmental Law and Policy 2017, p. 74 – 100

Abstract

Ethiopia offers an important case study on the role of law in regulating industrial pollution in developing countries. In the past decade, Ethiopia’s pursuits toward rapid economic growth have been at a high cost, with serious implications for the environment through industrial pollution. Ethiopia has taken steps to introduce industrial pollution legislation since 2002 with a view to eliminating or, when not possible, to mitigating pollution as an undesirable consequence of social and economic development activities. However, the Proclamation has not fared well with regard to the realization of its schemes and strategies. The new pollution control legislation i.e. The Industrial Park Proclamation No. 886/2015 embodies schemes and strategies to resolve the underlying tension in the country’s development agenda—the tension between the need to industrialize and to regulate industrial pollution. The legislation envisages that economic growth and environmental protection are possible at the same time. The effectiveness of Proclamation No. 886/2015 which deals with Industrial Parks remains to be seen.

Grassroots responses to water poverty, and the limitations of a right to water in South Africa and Malawi

Grassroots responses to water poverty, and the limitations of a right to water in South Africa and Malawi

Authors Nathan John Cooper

ISSN: 2616-8499
Affiliations: None
Source: South African Journal of Environmental Law and Policy 2017, p. 31 – 73

Abstract

This article considers how effective socio-economic rights are in securing sustainable access to sufficient water for people in two water-scarce countries in the SADC region: South Africa and Malawi. In South Africa, despite a groundbreaking constitutional right to water, challenges remain to achieving sustainable access to sufficient water for many of the country’s most vulnerable people. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to a variety of responses, including litigation. But in the seminal case of Mazibuko the Constitutional Court failed to provide robust protection or to adequately enunciate a substantive core to the right to water. Similarly, in Malawi, while there is no explicit constitutional provision for water, a right to development does exist. Fulfillment of this right clearly requires access to basic resources including health care, food, and by implication, water. In international law, South Africa and Malawi have ratified several treaties affirming the right to safe drinking water and sanitation. Indeed the Malawian case of Chihana v Republic established the Universal Declaration of Human Rights as part of domestic law. Yet in both countries millions of people continue to live in water poverty (without sustainable access to sufficient water). Such failure of ‘rights-talk’ has provided impetus for the formation of ‘commons’ strategies for water allocation. Indeed ‘commoning’ is beginning to represent not only an emerging conceptual strand in peri-urban resource allocation, but also a potentially dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, striving towards innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of a subaltern paradigm replete with empowering and enfranchising potential.

Using the South African Law of Trusts to Predict Some Features of the Nascent South African Public Trust Doctrine

Using the South African Law of Trusts to Predict Some Features of the Nascent South African Public Trust Doctrine

Authors Andrew Muir

ISSN: 2616-8499
Affiliations: None
Source: South African Journal of Environmental Law and Policy 2017, p. 5 – 30

Abstract

South African courts have evolved a foreign legal idea, the English private trust, in accordance with South African legal principles. In doing so, South African common law has been developed to give substance to the English idea of the trust. This has occurred despite the fundamental incompatibility of the two countries’ respective property law regimes which underpin the common law. Unlike the English trust, South African trusts are not based on dual real ownership rights but on contractual personal rights amounting to a personal beneficial interest. The statutory introduction of the South African Public Trust Doctrine (the SAPTD) has similarities with the introduction of the idea of the English trust into South African law. The Anglo-American Doctrine of Public Trust is regarded as a starting point or benchmark against which the SAPTD can be measured. Both the Doctrine of Public Trust and English private trusts are rooted in English law and are premised on dual ownership rights. This article asks certain questions about the nascent SAPTD and uses the similarities in origins between the Doctrine of Public Trust and English private trust law and the latter’s evolution within a South African context to provide possible answers to these questions. In doing so, the South African private trust law is used to predict some likely features of the SAPTD.