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South African Journal of Environmental Law & Policy

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
1023-1765

Description:

The South African Journal of Environmental Law and Policy is a peer reviewed journal which publishes contributions related to environmental law and policy. It provides a forum for scholars and practitioners from South Africa and around the world to reflect on issues of significance locally and internationally.

Issue Number

Latest documents

  • Case note: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

    In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the first ever private prosecution under section 33 of the National Environmental Management Act, British Petroleum (BP) was prosecuted and convicted for constructing filling stations without the necessary authorisation. The judgment deals mostly with the issue of locus standi to institute a private prosecution for environmental offences. The purpose of this note is to highlight the issues that emerge from the judgment. The note also discusses the role that could be played by the National Director of Public Prosecutions should they decide to take over a private prosecution instituted under section 33 of NEMA

  • Vertically-challenged? Interrogating intergovernmental coordination in Kenya’s municipal solid waste management (MSWM) for sustainability

    The concept of environmental integration offers a viable paradigm for realisation of sustainability through incorporation of environmental protection considerations in policy and legislation. Pursuing optimal environmental integration between various levels of governance – a concept known as vertical environmental integration (VEI) – is contingent on effective and adequate intergovernmental coordination. Using municipal solid waste management (MSWM) as a reference case, this paper explores the pursuit of VEI through intergovernmental coordination in Kenya. The paper argues that the prospects of entrenching VEI are undermined by inadequate and incongruent intergovernmental coordination mechanisms and strategies as well as by the lack of clarity in distribution of regulatory responsibilities in MSWM between the national and county levels of government. This is despite the adoption of a transformative Constitution in 2010 with a focus on devolution that emphasises coordinated and consultative relationships between the two levels of government. Lessons from South Africa offer prospects for improving intergovernmental coordination to achieve sustainability in MSWM.

  • Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

    Human rights defenders' lives, activism, and livelihoods are under threat globally. This is a particular reality for those working to protect land and natural resources. This article examines one of the forms in which environmental activists are being targeted in South Africa, namely the abuse of litigation processes to silence dissent, referred to as Strategic Litigation Against Public Participation (SLAPP suits). This article examines the development of SLAPP suits in South Africa and the impact that they have on the environmental sector and environmental rights. It then discusses some of the latest developments in SLAPP suits locally, including how in recent years, in addition to the more traditional defamation-style SLAPP suit, SLAPP suits have started to take new forms such as costs proceedings and allegations of intellectual property infringement. Lastly, this article explores possible responses to SLAPP suits, concluding that serious consideration needs to be given to anti-SLAPP legislation, the use of the special plea mechanism, and the opportunities for enhanced advocacy and solidarity action that SLAPP suits provide.

  • Case note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

    The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate's Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA's judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

  • Conservation servitudes in South Africa

    In recent years, the conservation servitude has gained traction as a biodiversity stewardship mechanism for the protection of biodiversity and ecological infrastructure on private land in South Africa. This article provides insight into what a conservation servitude is and showcases how it has been used in practice by non-governmental organisations, environmental authorities and municipalities in South Africa to further conservation objectives. It explores the common and statutory law limitations on the use of servitudes for conservation purposes and identifies some of the innovative strategies that have been used, by especially non-government organisations and municipalities, to overcome these limitations. The similarities and differences between conservation servitudes and other mechanisms used in South Africa to secure areas of biodiversity significance or ecological infrastructure are considered, before identifying the various contexts in which conservation servitudes are currently being used in practice.

  • Informing the regulatory framework on water and sanitation in Southern Africa: The emerging governance framework accompanying SDG 6

    At least 40% of the people in the Southern African Development Community (SADC) region do not have access to safe water and sanitation, rendering them vulnerable to prolonged conflicts and catastrophes, including exposure to water-borne diseases, other pandemics, poverty and human suffering. Although several international and African regional treaties support the human rights to water and sanitation, the ability of the SADC regulatory framework to give effect to these rights is concerning. In fact, available literature on the SADC's ability to meaningfully realise these rights is fragmented and scant. This article examines theoretically a novel governance approach to the implementation of Sustainable Goal 6 of the United Nations 2030 Agenda. The article argues that the coercion through regional 'goal setting' may provide a conclusive, regional response to the continuing development of water and sanitation rights in the SADC region.

  • Case note: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

    In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the first ever private prosecution under section 33 of the National Environmental Management Act, British Petroleum (BP) was prosecuted and convicted for constructing filling stations without the necessary authorisation. The judgment deals mostly with the issue of locus standi to institute a private prosecution for environmental offences. The purpose of this note is to highlight the issues that emerge from the judgment. The note also discusses the role that could be played by the National Director of Public Prosecutions should they decide to take over a private prosecution instituted under section 33 of NEMA

  • Conservation servitudes in South Africa

    In recent years, the conservation servitude has gained traction as a biodiversity stewardship mechanism for the protection of biodiversity and ecological infrastructure on private land in South Africa. This article provides insight into what a conservation servitude is and showcases how it has been used in practice by non-governmental organisations, environmental authorities and municipalities in South Africa to further conservation objectives. It explores the common and statutory law limitations on the use of servitudes for conservation purposes and identifies some of the innovative strategies that have been used, by especially non-government organisations and municipalities, to overcome these limitations. The similarities and differences between conservation servitudes and other mechanisms used in South Africa to secure areas of biodiversity significance or ecological infrastructure are considered, before identifying the various contexts in which conservation servitudes are currently being used in practice.

  • Case note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

    The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate's Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA's judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

  • Vertically-challenged? Interrogating intergovernmental coordination in Kenya’s municipal solid waste management (MSWM) for sustainability

    The concept of environmental integration offers a viable paradigm for realisation of sustainability through incorporation of environmental protection considerations in policy and legislation. Pursuing optimal environmental integration between various levels of governance – a concept known as vertical environmental integration (VEI) – is contingent on effective and adequate intergovernmental coordination. Using municipal solid waste management (MSWM) as a reference case, this paper explores the pursuit of VEI through intergovernmental coordination in Kenya. The paper argues that the prospects of entrenching VEI are undermined by inadequate and incongruent intergovernmental coordination mechanisms and strategies as well as by the lack of clarity in distribution of regulatory responsibilities in MSWM between the national and county levels of government. This is despite the adoption of a transformative Constitution in 2010 with a focus on devolution that emphasises coordinated and consultative relationships between the two levels of government. Lessons from South Africa offer prospects for improving intergovernmental coordination to achieve sustainability in MSWM.

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