The importance of environmental laws in housing developments : lessons from the Diepsloot housing project

• Pages: 202-228
• Published date: 01 January 2011
• Author: Grace Mafunganyika
• DOI: 10.10520/EJC153209
• Date: 01 January 2011

The importance of environmental laws

in housing developments: Lessons from

the Diepsloot housing project

Grace Mafunganyika

*

Democratic local governments can only bring about prospects for sustainable

development. Nothing more, nothing less. It is their participatory, creative spirits

and innovative capacities which people and organisations at local government will

have to employ collectively to bring about the betterment of the quality of lives.

**

1Introduction

South Africa comes from a past of great oppression where the majority of the

citizens, especially blacks, lived in abject poverty and deprivation.

1

Apartheid laws

such as the Native Resettlement Act 19 of 1954 and the Bantu/Native Building

Workers Act 27 of 1951 distorted access to natural resources and denied the

majority of citizens basic needs such as water, land and clean air.

2

In 1994, with

South Africa’s new dispensation, there were serious social, ec onomic, legal, moral

and environmental problems.

3

The post-apartheid government had to take

immediate action to address these problems.

The government immediately, after being elected, implemented programmes

aimed at improving the citizens’ quality of life.

4

These programmes were mostly

*

LLB (Cum Laude), LLM, Lecturer, School of law, University of Limpopo (Turfloop Campus). This

article is an excerpt from a research paper submitted in completion of my LLM (2009).

**

Ntsime (2003) 33/1 Africanus 50.

1

Fuggle and Rabie Environmental concerns in South Africa (1983) 23-29, see also Turpie

‘Environmental and resource economics’ in Strydom and King (eds) Fuggle and Rabie’s

Environmental management in South Africa (2009) (2

nd

ed) 34-38.

2

The Reconstruction and Development Programme: A Policy Framework (RDP) (1994) para 2.10.1.

3

Carlson and Van Staten ‘Environmental concern in South Africa: The Development of a

measurement scale’ (2006) 2 New Voices in Psychology 3-7.

4

White Paper on the Reconstruction and Development Programme GN 1954 of 1994, GG 16085,

1994-11-23 and the Growth, Employment and Redistribution Strategy: A macroeconomic strategy

1996-06-14.

The importance of environmental laws in housing developments 203

directed at the realisation of socio-economic rights, which encompass the right to

sustainable development as guaranteed in Section 24 of the Constitution.

5

As a

result, the government focused on the advancement of socio-economic

development and neglected environmental issues.

6

However, the Constitution of

the Republic of South Africa, 1996 (the Constitution) protects both the right to

development and the right to environmental protection.

7

The State had two main problems, namely, the realisation of socio-economic

rights and protecting the environment.

8

In order to strike a balance between the

two seemingly competing rights, the government came up with the White Paper

on Environmental Management Policy in May 1998.

9

In 1998, the government

enacted the National Environment Management Act 107 of 1998 (NEMA), an

environmental framework law aimed at achieving sustainable development.

10

NEMA provides a framework in which development projects are established in a

sustainable manner taking into account their possible negative impact on the

environment.

11

Section 2(4)(f) of NEMA also makes provision for public

involvement in decisions affecting the environment.

South Africa as a developing country has embarked on large-scale infra-

structural development including the construction of roads, dams, housing, and other

facilities. These developmental projects will in one way or the other have an adverse

effect on the environment. However, in the realisation of socio-economic rights the

government often neglects to take into account the importance of a sustainable

natural environment and its benefits in ensuring that development projects are

sustainable.

12

The result of which is poor service delivery and unsustainable

development projects.

13

As a result, a carefully planned development process, which

will take into account environmental issues, is a necessity.

14

The question which this article aims to address is whether or not the right to

development should be exercised, or given effect to, in such a manner as to

ensure environmentally sustainable development in South Africa.

5

Scheepers Practical guide to law and development in South Africa (2000) 17-20, see also arts 1 and

6(2) of the Declaration on the Right to Development UN Gen Assembly Resolution 41/128 of 4

December 1986.

6

Wildlife Society of Southern Africa v Minister of Environmental Affairs and Tourism 1996 3 SA 1095

(Tk). This case involved a group of people who erected shacks on environmentally sensitive coastal

areas with the respondents' permission.

7

Sections 24, 26 and 27 of the Constitution.

8

Carlson and Van Staden (n 3) 4-5.

9

See para 4 (Strategic Goal 2 Sustainable Resource Use and Impact Management).

10

Couzens ‘A step closer to coherence’ (1999) 6 SAJELP 13, 14-15.

11

Bray ‘Towards sustainable development: Are we on the right track’ (1998) 5 SAJELP 1, 1-9.

12

See Director: Mineral Development, Gauteng Region v Save the Vaal Environment paras 717D-F

13

Beyers ‘A figure/ground analogy for integrating sustainability and planning’ (2006) 5 Town and

Regional Planning 13-25.

14

Odendaal ‘Integrated development planning: An opportunity for planners to enable transformation?’

(2007) 51 Town and Regional Planning 67-74.