Re-thinking the “pillar paradigm” for sustainable development: An analysis of the Bo-Kaap case reveals a shift to simple proportionality ... and the fact that deference is not dead after all [Discussion of Bo-Kaap Civic & Ratepayers Association v The City of Cape Town 2020 2 All SA 330 (SCA)]

• Citation: (2022) 33 Stell LR 703
• DOI: https://doi.org/10.47348/SLR/2022/i4a8
• Published date: 28 March 2023
• Pages: 703-722
• Author: Kohn, L.
• Date: 28 March 2023

703

https://doi.org /10.47348/ SLR/2 022/i4 a8

RE-THINKING THE “PILLAR PARADIGM” FOR

SUSTAINABLE DEVELOPMENT: AN ANALYSIS

OF THE BO-KAAP CASE REVEALS A SHIFT

TO SIMPLE PROPORTIONALITY … AND

THE FACT THAT DEFERENCE IS NOT DEAD

AFTER ALL [DISCUSSION OF BO-KAAP CIVIC

& RATEPAYERS ASSOCIATION v THE CITY OF

CAPE TOWN 2020 2 ALL SA 330 (SCA)]

Lauren Kohn*

B Bus Sci LLB LLM & Young Research Fellow (University of Cape Town)

Senior Lecturer, University of Cape Town

Abstract

This article crystalises and critiques the reasoning of the Supreme Court

of Appeal judgment in Bo-Kaap Civic & Ratepayers Association v The City

of Cape Town 2020 2 All SA 330 (SCA) (“Bo-Kaap”). It does so against the

backdrop of the environmental right in section 24 of the Constitution and its

animating touchstone of “sustainable development”. In particular, it is argued

that Bo-Kaap reveals that the “pillar paradigm” for elucidating and ensuring

sustainability is outdated and doctrinally unhelpful. Instead, sustainability is

best considered, and attained, through simple proportionality and thus the

balancing of factors – including cultural concerns, such as heritage – in a

context-responsive manner. Furthermore, the judgment is a signicant, if

somewhat awed, one on the matter of deference in the context of reviewing

the decisions of actors that exercise public powers. It cautions against judicial

overzealousness where the separation of powers looms large and, as in the

context of Bo-Kaap, where administrative efciency and the developmental

agenda is at stake. Furthermore, the judgment simultaneously reveals the

power (and importance) of socio-economic-rights litigation (and internal

appeal procedures) in enhancing participatory, responsive, and thus more

accountable, governance. Bo-Kaap concerned a public-interest matter but

was litigated – as per the court – to vindicate personal proprietary interests.

The case is therefore also interesting insofar as the court refused to apply the

principle in Biowatch Trust v Registrar, Genetic Resources 2009 6 SA 232

(CC) on cost-awards where constitutional litigation is concerned. While the

judgment has laudable features, and ultimately shines a redeeming light on

the (enhanced) actions of the state decision-makers in ensuring sustainable

* I would like to tha nk the anonymous rev iewers for their enr iching feedback and in sights Any errors or

oversights are my ow n

(2022) 33 Stell LR 703

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https://doi.org /10.47348/ SLR/2 022/i4 a8

development, it may equally prove to have a chilling effect on public-interest

litigation.

Keyword s: Sustainable development; proportionality; heritage; cultural

sustainability; deference; reasonableness-review; Biowatch costs-principle;

anthropocentrism

1 Introduction to the judgment in Bo-Kaap Civic and Ratepayers

Association v City of Cape Town1 (“Bo-Kaap”) and reflections

on the continued relevance of the “pillar paradigm” for

sustainable development

It is not often that environmental-law issues take centre stage in South

African jurisprudence,2 notwithstanding the pre-eminence of a freestanding

fundamental justiciable right to the “environment” in the Constitution of

the Republic of South Africa, 1996 (the “Constitution”),3 and despite an

initial judicial eagerness to embrace environmental considerations.4 As a

result, when these considerations do feature in a judgment, this calls for

a “reporting, reviewing and re-appraising” of the state of environmental

law.5 This is especially so given that in South Africa, environmental issues

are often eclipsed by the more concrete, if related, concerns that ow from

the other socio-economic and cultural rights6 in our generous Bill-of-Rights

basket. These include, for example, the right to property,7 access to adequate

housing, 8 water,9 and so on. There is perhaps some irony in the environmental

1 2020 2 All SA 330 (SCA)

2 L Ferri s “Constit utional Env ironmental Rights: A n Under-Util ised Resour ce” (2008) 2 4 SAJHR 29; A

du Plessis “Adding Flames t o the Fuel: W hy Furthe r Constitut ional Adjudicat ion is Requi red for South

Africa’s Environ mental Right to Cat ch Alight” (2008) 15 SAJELP 57 73

3 S 24 of the Constit ution of the Republic of Sout h Africa, 1996 (the “Cons titution”) provide s:

“Everyone has t he right -

(a) to an environ ment that is not har mful to their h ealth or wellbeing; an d

(b) to have the env ironment pro tected, for the b enefit of present a nd future ge nerations, t hrough

reasonable leg islative and other mea sures that -

(i) prevent pollut ion and ecological deg radation;

(ii) pro mote conservati on; and

(iii) secure ecolog ically sustainable developm ent and use of natural reso urces while promoting

justifia ble economic and socia l development ”

4 See eg BP Souther n Africa (Pty) Ltd v MEC fo r Agriculture, Con servation, En vironment & Land Aff airs

2004 5 SA 124 (W) 142C-D, wher e the court held that “ [b]y virtue of s 24, env ironmental c onsiderations,

often ignore d in the past, have now b een given rightf ul promine nce by their inclu sion in the Consti tution”

See also Direc tor: Mineral Developmen t, Gauteng Region v Sav e the Vaal Environment 1999 2 SA 709

(SCA) 719C-D:

“Our Const itution, by including envi ronmental rights as fu ndamental, justiciable hu man rights, by

necessar y implication req uires that envi ronmental co nsiderations be a ccorded appropr iate recognit ion

and respect i n the admini strative proces ses in our count ry Together with the change i n the ideological

climate must a lso come a change in ou r legal and admi nistrative ap proach to envir onmental conc erns ”

Sadly, over two decad es later this is sti ll not the case

5 R Lee & D McGillivr ay “Analysing An alysis: Report ing, Reviewin g and Re-app raising Envi ronmental

Law” (2013) 25 JEL 485 485

6 See eg S Liebenberg “Judicial ly Enforceable Socio-Eco nomic Rights in South Afr ica: Between Light and

Shadow” (2014) 37 DULJ (NS) 137 140

7 S 25 of the Constit ution

8 S 26

9 S 27

704 STEL L LR 2022 4

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