The right to the city and the urban environment : re-imagining section 24 of the 1996 Constitution

• Author: Marius Pieterse
• DOI: 10.10520/EJC162991
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 175-193

An earlier version of this article was presented at the International Academic Forum’s Conference

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on Governance, Society and Sustainability, held in Osaka in November 2013. The research in this

article was enabled by a grant from the National Research Foundation

BLC LLB LLM PhD, Professor lf Law, University of the Witwatersrand, Johannesburg.

**

Swilling ‘Local governance and the politics of sustainability’ in van Donk et al (eds) Consolidating

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developmental local government: Lessons from the South African experience (2008) 77 at 79.

See Pieterse ‘Development, the right to the city and the legal and constitutional responsibilities of

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local government in South Africa’ (2014) 131 SALJ 148 at 153.

See Du Plessis ‘South Africa’s constitutional environmental right (generously) interpreted: What

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is in it for poverty?’ (2011) 27 SAJHR 279 at 287-288; Kidd ‘Environment’ in Currie and De Waal

(eds) The Bill of Rights handbook (2013) 516 at 525; Swilling (n 1) 79-81.

The right to the city and the urban

environment: Re-imagining section 24 of

the 1996 Constitution*

Marius Pieterse**

1 Introduction

The majority of the world’s population now lives in cities, and the tide of

urbanisation shows no sign of ebbing. People come to cities to sustain

themselves and to improve their lives. Once there, many languish in extreme

poverty, living in deplorable conditions and caught in cycles of unemployment,

disease and exploitation. Alongside them, concrete signs of progress, privilege

and opulence abound. Cities are the physical sites of inequality, of unequal

distribution of income, services and the privileges of citizenship. Yet, their

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infrastructure, the access they provide to services essential for human survival,

upliftment and flourishing, as well as the economic, social and cultural activity with

which they brim, all remain symbols of a better life within reach. Cities are where

socio-economic rights are enacted, asserted, struggled for, attained and denied.2

The growth and functioning of cities obviously has a significant environmental

impact. Urban pollution, sprawl and energy consumption pose real and lasting

threats to the natural environment, whereas climate change, poor environmental

health and intensifying resource scarcity increasingly threaten the ability of cities

to fulfil the needs of those who inhabit them.3

176 (2014) 29 SAPL

Du Plessis (n 3) 292-293; Dugard and Alcaro ‘Let’s work together: Environmental and socio-

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economic rights in the courts’ (2013) 29 SAJHR 14 at 17.

2001 3 SA 1151 (CC).

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2008 3 SA 208 (CC).

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2010 3 SA 454 (CC).

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2010 4 SA 1 (CC).

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It is therefore understandable that the environmental impact of urbanisation,

urban growth and development tends to be assessed predominantly with

reference to the natural environment (for instance, when contemplating the

effects of pollution, the destruction of ecosystems and the depletion of natural

resources). Comparatively little attention is devoted to environmental issues

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within towns and cities. Yet, the physical form of cities determines the living

conditions of their inhabitants as well as the distribution of goods, services and

opportunities within them. The urban environment is thus an important factor in,

and indicator of, the progressive realisation of socio-economic rights as well as

the enjoyment of the civil and political rights with which they intersect. The

potential of cities to fulfil the needs of their inhabitants may be enhanced

therefore by improving the urban environment, whereas that potent ial will

inevitably be inhibited by the deterioration thereof.

It often happens that ostensible public or private attempts to improve the

urban environment, for instance through infrastructure programmes or urban

regeneration schemes, are opposed because of their detrimental impact on the

livelihoods and access to the objects of socio-economic rights of urban

inhabitants, especially the poor. As often, socio-economic upliftment and poverty

alleviation projects are challenged because of their perceived environmental

impact. In deed, a num ber of the so cio-economic rights decisions ha nded down

by South African courts in recent years have involved either of these forms of

opposition. Minister of Public Works v Kyalami Ridge Environmental Association,5

for instance, involved opposition by residents of a wealthy neighbourhood to the

erection of temporary housing for poor flood victims in their vicinity, ostensibly out

of concern for the environmental impact this would have. More directly, Occupiers

of 51 Olivia Road v City of Johannesburg involved a challenge to the evictions

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of inner city Johannesburg residents from abandoned and deteriorated buildings,

in terms of a policy aimed at urban regeneration and the enhancement of urban

health and safety. Similarly, Residents of Joe Slovo Community, Western Cape

v Thubelisha Homes involved the relocation of inhabitants while the informal

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settlement was upgraded and redeveloped. Other cases, such as Mazibuko v City

of Johannesburg, have involved opposition against city management’s attempts

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to reduce and structure urban resource consumption (in Mazibuko’s case, water),

partly due to environmental concerns.