Cooperative environmental governance : at the coalface of sustainable infrastructure development in South Africa

• DOI: 10.10520/EJC-79788a3ad
• Author: Anel Du Plessis,Reece Alberts
• Pages: 441-468
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a11
• Published date: 01 January 2014

BA (Law), LLB, LLM, LLD. Professor of Law, Faculty of Law, North-West University (Potchefstroom

*

Campus).

BComm (Law), LLB, LLM, M.Env.Environmental Law Specialist, Centre for Environmental

**

Management, North-West University (Potchefstroom Campus).

Cooperative environmental

governance: At the coalface of

sustainable infrastructure development

in South Africa

Anél du Plessis and R eece Alberts

***

Abstract

In this article, large-scale infrastructure development is situated within the

sustainability paradigm with an emphasis on questions about

enviro nme ntal im pac t. W hile the focus is on S outh A frica, th e article

contributes to the broader body of law and governance scholarship that

deals with the complexity inherent in the search for infrastructure

development that mee ts the demands of sus tainability. The authors

attend specifically to the role of cooperative environmental governance

(CEG). They set out to explain the existence of and difficulty surrounding

the leg al duty of t he Sou th Africa n gover nmen t to purs ue susta inability via

its development-related decision-making processes. The prominence of

the no tion of c oope rative g overnm ent in Sout h Af rica’s d emo cratic

government system is highlighted whereafter the authors evaluate the

role of CEG in government decisions that they regard to be in need of an

inclus ive and holistic ap proach to su stainability. Th e difficu lty inhere nt in

marrying CEG with the pursuit of sustainability in large-scale project

developments is explained with specific reference to the controversial

Medupi and Kusile power station projects. In conclus ion, the authors

briefly outline the provisions of the 2014 Infrastructure Development Act

and ask if and how the Act can cater for CEG through a limited

environmental impact but can still adhere to the requirements that

442 (2014) 29 SAPL

See Ostrom et al Institutional incentives and sustainable development: Infrastructure policies in

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perspective (1993); Briceño-Garmendia et al Infrastructure services in developing countries:

Access, quality, costs and policy reform (2004); Calderón and Servén The effects of infrastructure

development on growth and income distribution (2004); and Bardhan and Mookherjee

‘Decentralisation and accountability in infrastructure delivery in developing countries’ 2006 (116)508

The Economic Journal 101-127.

OECD Promoting pro-poor growth infrastructure (2006).

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available at www.oecd.org/dac/povertyreduction/36301078.pdf (accessed 2014-06-01) 1 June

2014).

GIZ ‘Sustainable Infrastructure’

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available at http://www.giz.de/en/ourservices/sustainable_infrastructure.html (accessed 2014-06-

01).

See Langa ‘Transformative Constitutionalism’ 2006 Stell LR 351-360; Moseneke ‘The Fourth Bram

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Fisher Memorial Lecture – Transformative Adjudication’ 2002 SAJHR 309-319; and Liebenberg

‘Needs, rights and transformation: Adjudicating social rights’ 2006 Stell LR 5-36, among others.

See Feris ‘The role of good environmental governance in the sustainable development of South

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Africa’ 2010 (13) 1 PER 76.

Infrastructure Development Act 23 of 2014 (GN 37712 in GG 2014-06-02).

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The Act builds upon the 2012 National Infrastructure Plan.

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government decisions pas s the tests of the Constitution and framework

environmental legislation.

1 Introduction

The role of infrastructure development in developing countries and the range of

accompanying challenges have been explored from different scholarly angles for

many years. The lack of adequate infrastructure is understood to impede

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economic development and overall progress in society. Water, energy, transport,

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adequate housing and other infrastructure are regarded as key sources of

development and as prerequisites for continued growth. Infrastructure

development has been aptly described as ‘the great enabler’ that ‘enables

economic growth and, as a result, it is the bedrock for better living conditions’.3

With its democratic transition, South Africa adopted a transformative

Constitution that promises social transformation. The kind of progress and

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change necessary to effect this transition depends on infrastructure expansion.

The government seems acutely aware of this fact. In July 2014, the Infrastructure

Development Act (the Act) entered into force. This officially marked the moment

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where the government confirmed its commitment to economic growth and

development through large-scale infrastructure projects. The Act makes it clear

that in years to come, infrastructure development will be given priority in planning,

approval and implementation (that is, it will be fast-tracked); and that national

development goals will be promoted through infrastructure development. This is

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