Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

by | Jun 18, 2022 | SLR, SLR V33 I2

Climate change protests and a liberal rights approach in South Africa: Pitfalls and potentials

Authors: Ademola Oluborode Jegede and Myrone Christopher Stoffels

ISSN: 1996-2193
Affiliations: LLB LLM LLD Professor of Law, University of Venda; LLB, LLM Lecturer, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 125 – 147
https://doi.org/10.47348/SLR/2022/i2a7

Abstract

The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa.

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

Author: Germarié Viljoen

ISSN: 1996-2193
Affiliations: LLB LLM LLD Associate Professor, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 148 – 160
https://doi.org/10.47348/SLR/2022/i2a8

Abstract

A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime.

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

by | Jun 17, 2022 | SLR, SLR V33 I2

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

Author: Amanda ZT Mkhonza

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 161 – 175
https://doi.org/10.47348/SLR/2022/i2a9

Abstract

There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

Author: Angelo Dube

ISSN: 1996-2193
Affiliations: BA LLB LLM MBL LLD Professor, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 176 – 186
https://doi.org/10.47348/SLR/2022/i2a10

Abstract

On 20 March 2020 the President of South Africa, Cyril Ramaphosa, announced a national lockdown as an interim response by the South African Government to the COVID-19 pandemic. This followed a declaration of a state of national disaster by the Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma. As part of the 21-day national lockdown, the Minister issued regulations aimed at stemming the rise in infections across the country. Part of the restrictions imposed by the regulations was to limit free movement which included regulating crossprovincial travel without a permit. In CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the High Court of South Africa was confronted with an application in which the parents of two minors requested permission to travel across provinces to fetch their minor children and return them to their place of residence. The issue before the court was whether the regulations permitted the movement of children between parents and their caregiver.