The judiciary’s role in shaping urban space in South Africa as per the Sustainable Development Goals

by | Jun 5, 2020 | SAJELP, SAJELP 2018

The judiciary’s role in shaping urban space in South Africa as per the Sustainable Development Goals

Authors Anél du Plessis

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 5 – 44

Abstract

The international community sees cities taking the global development agenda forward in the coming years. The recently adopted Global Sustainable Development Goals (SDGs) include a distinct goal dedicated to cities, SDG 11, complemented by the subsequent release of the United Nations’ New Urban Agenda (2016). While these global policy developments and urbanisation itself are celebrated for their potential to help make cities more prosperous, many cities of the world have been described as being ‘grossly unprepared for the multidimensional challenges associated with urbanisation.’ Scholars from disciplines such as urban geography, planning, public administration, political theory and sociology continue to grapple with this complexity in the global north and south. For decades, cities in South Africa have also been growing unsustainably. In response to some of these challenges, the national government adopted the White Paper on Local Government (1998) and subsequently a number of national local government laws and policies. The premise is that the South African government is committed in its entirety to the pursuit of safe, sustainable, resilient and inclusive cities and that this promise translates into a complex range of responsibilities for the national, provincial and local authorities as well as the three branches of government. These responsibilities are not clearly defined, and even if they were, legally relevant conflict is bound to arise at some point for the courts to resolve. This article questions the role of the courts in South Africa in deciding matters that intersect with issues of urban safety, sustainability, resilience and/or inclusivity. The analysis is done with reference to a selection of recent judgments where the courts had to pronounce on municipal governing authority, urban development, municipal service delivery and the notion of accountable and responsive local government.

The camel at the cutting edge: Animal welfare, environmental law, private prosecution and the three judgments in NSPCA v Minister of Justice

by | Jun 5, 2020 | SAJELP, SAJELP 2018

The camel at the cutting edge: Animal welfare, environmental law, private prosecution and the three judgments in NSPCA v Minister of Justice

Authors Adrian Bellengère and Ed Couzens

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 45 – 86

Abstract

This analysis explains how an incident of attempted slaughter of two camels for religious purposes set off a chain of events and judgments that has the potential significantly to enlighten our understanding of the position of animal welfare-related law in South Africa, and the overlap between animal welfare and environmental law. Three judgments are recounted and then commented upon – in the High Court, the Supreme Court and the Constitutional Court. It is explained that a number of misunderstandings of the legal position, by legal authorities and courts, have prevented the National Society for the Prevention of Cruelty to Animals – a juristic person mandated to take legal steps to prevent animals from being cruelly treated – from employing the full range of legal tools that ought to be available to it, including the right to prosecute privately when the National Prosecuting Authority declines to prosecute. The Constitutional Court has ultimately decided that the NSPCA does have this right; but it is explained that the judgment does not show as much understanding of the legal position as would have been desirable. In particular, it appears that the nexus between animal welfare law and environmental law has not been well understood; and it is suggested that the National Environmental Management Act of 1998 provides for a right of private prosecution that could, and should, be employed in circumstances such as these.

Municipal flood management in South Africa: A critical reading of recent case law

by | Jun 5, 2020 | SAJELP, SAJELP 2018

Municipal flood management in South Africa: A critical reading of recent case law

Authors Angela van der Berg

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 87 – 118

Abstract

Natural disaster losses and people’s exposure to natural hazards are increasing all over the world. Human-induced climate change is likely to result in a continuing upward trend in the occurrence of natural disasters. Recent studies indicate that flooding is the most frequently occurring natural disaster. In the urban context, flooding impacts more people than any other type of natural disaster. In South Africa specifically, climate change has resulted in infrequent but heavy rains and flash floods punctuating the normally arid and semi-arid conditions. Between 2011 and 2018 the country experienced severe flash flooding in several of its urban areas. The occurrence and severity of flooding seems to have increased, resulting in damage to infrastructure, agriculture, property and human health and well-being. South Africa boasts an extensive legal framework for disaster management including laws and policy on other matters related to disaster risk reduction. Nevertheless, the extent to which government, specifically municipalities, are legally bound to prevent damage caused by natural disasters, especially in the event of flooding, remains unclear. The uncertainty seems to be exacerbated by a lack of clarity in legislation and by contrasting judicial views. In light of this uncertainty, this paper aims to critically determine the extent to which South African law places a duty on municipalities to prevent flood damage. The paper pays specific attention to South Africa’s disaster management legislation, read with the recently decided cases of Abbott v Overstrand Municipality (2016) and Propshaft Master (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality (2017).

Drought-tolerant GM maize as a climate-smart measure in South Africa: Promises, perils and precaution

by | Jun 5, 2020 | SAJELP, SAJELP 2018

Drought-tolerant GM maize as a climate-smart measure in South Africa: Promises, perils and precaution

Authors Odile Lim Tung

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 119 – 154

Abstract

Due to global warming, the likelihood of droughts may increase and more effective management approaches are necessary with regard to water in the medium to longer term. Africa as a drought-prone continent is heavily impacted with its smallholder farmers who rely mainly on rainfall for their crops. Maize, as the most widely grown staple crop in Africa, is particularly affected by frequent drought and drought-tolerant genetically modified (GM) crops are said to play an important role with respect to increased droughts on this continent. Current research on GM crops in South Africa and other African countries in research laboratories, in greenhouses or confined field trials, target drought-tolerant GM crops. This paper focuses on the first drought-tolerant GM maize (MON87460) authorised in South Africa in 2015 and discusses its relevance as a climate-smart measure for South Africa as the current biggest African GM crop producer. It looks into the promises of biotech companies regarding this drought-tolerant GM maize as well as its potential risks and draws lessons from the South African experience with GM crops for the rest of Africa.

The Qualidental and Gees judgments: Their impacts on the administration of applications to demolish buildings more than sixty years old

by | Jun 5, 2020 | SAJELP, SAJELP 2018

The Qualidental and Gees judgments: Their impacts on the administration of applications to demolish buildings more than sixty years old

Authors Stephen Townsend

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 155 – 174

Abstract

The National Heritage Resources Act protects heritage resources through two mechanisms, ‘formal’ and ‘general’ protections. One of the general protections enables the ‘screening’ of the heritage worthiness of structures more than sixty years old before authorisation to demolish is granted by the relevant provincial heritage resources authority (PHRA). In two cases, the Qualidental and Gees cases in 2007 and 2016 respectively, the Supreme Court of Appeal (SCA) confirmed the authority of PHRAs to impose conditions in order to protect abutting and nearby heritage resources when approving demolitions. Taking these two judgments into account, Gees in particular, this paper explores the consequences on future approvals of demolitions of structures more than sixty years old and suggests the necessary tempering of conditions in light of the Property, Just Administrative Action and Limitation of Rights clauses of the Constitution, and, importantly, in light of the test devised by the Constitutional Court in the FNB case.

Energy efficiency: The progress of policy, legislation, and the role of the courts in South Africa

by | Jun 5, 2020 | SAJELP, SAJELP 2018

Energy efficiency: The progress of policy, legislation, and the role of the courts in South Africa

Authors Willemien du Plessis

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 175 – 203

Abstract

Energy efficiency measures reduces energy intensity and lead to energy savings. It is seen as one of the ways in which to address the reliance on coal-based energy and its negative consequences. South Africa has various policies and laws that refer to energy efficiency. The Draft Post-2015 National Energy Efficiency Strategy sets energy efficiency targets for the public, private and transport sectors. The National Energy Regulator of South Africa (NERSA) is mandated to approve electricity tariffs and prices, amongst others. These tariffs have to be approved in line with the Multi-Year Price Determination (MYPD) Methodology, which also refers to energy efficiency. In a 2016 Gauteng High Court decision the court referred to the fact that Eskom encouraged its customers to use less energy, while the Supreme Court of Appeal did not refer to either energy savings or energy efficiency. The aim of this note is to discuss energy efficiency in light of the progress of policy and legislation and to indicate a possible role for the courts in this regard.