Unlocking the Potential of Well-Being in the Environmental Right: A Teleological Interpretation

• Jurisdiction: South Africa
• Author: Donald, M.
• Pages: 55-79
• Published date: 01 June 2020
• Date: 01 June 2020
• Citation: (2020) 31 Stell LR 55

55

UNLOCKING THE POTENTIAL OF WELL-

BEING IN THE ENVIRONMENTAL RIGHT:

A TELEOLOGICAL INTERPRETATION

Megan Donald*

BTS BA(Hons) LLB LLM

LLD Candidate, Stellenbosch University

1 Introduction

The meaning of “well-being” a s referred to in section 24 of the Constitution

of the Republic of South Africa, 1996 (“Constitution”) is famously elusive and

difcult to dene.1 The term holds withi n it a wealth of possibilities which

remain largely dorma nt and underdeveloped.2 To fully realise the right t o an

environment that is not ha rmful to health or well-being, and to ha rness its full

potential, it is necessar y to concretise the meaning and scope of well-being.3

In light of the transfor mative goals of the Constitution, sect ion 24 must

be construed w ith due regard to the socio-e conomic challenges of poverty,

unemployment, and inequa lity, recognising that the socio -economically

vulnerable “are also t he most likely to be adversely affected by climate change,

unhealthy environ ments and polluted livi ng and working conditions”.4 It

is suggested that the pote ntial of the environmenta l right to promote social

justice and improve the qualit y of life of South Africans is best u nlocked

through a teleological and interd ependent inter pretation of section 24 in the

* This art icle is derived fr om part of the aut hor’s LLM disserta tion: M Donald Advancing the Constitutional

Goal of Social Ju stice throu gh a Teleological Inte rpretatio n of Key Concept s in the Environm ental

Rights in Sect ion 24 LLM thesis, Stellenbo sch University (2014) I would like to than k Professor Sandra

Liebenberg for her g eneral guidan ce and support in w riting this a rticle

1 See J Glazewsk i “The Bill of Rig hts and Enviro nmental Law ” in J Glazewski & L D u Toit (eds)

Environmental Law in South Africa (SI 5 2017); L Feris “Constitution al Environme ntal Rights: An u nder-

utilised re source” (2008) 24 SAJHR 29 38; K Kota & N Kota “ Realising the r ight to a healthy e nvironment :

An analysis of th e policy effort s, budgeting a nd enjoyment of the r ight to a healthy e nvironme nt in

South Afri ca – Working Paper 19” (March 2018) Studies i n Poverty and Inequalit y Institute 22

www spii org za /wp-content/uploads/2018/08/Working-Paper-19-Realising-the-right-to-a-healthy-

environme nt pdf> (accessed 18-0 4-2020) The meaning of well-bei ng was most recently invest igated in

A du Plessis “The P romise of ‘Well-being’ in Section 2 4 of the Constitution of Sout h Africa” (2018) 34

SAJHR 191-208

2 Glazewski “T he Bill of Rights and Envi ronmental Law” i n Environmental Law in SA 5-16; A du Plessis

“South Afr ica’s Constitutional E nvironmenta l Right (Generously) Int erpreted: W hat is in it for povert y?”

(2011) 27 SAJHR 279 303

3 A du Plessis “Adding Flame s to the Fuel: Why furt her constitutiona l adjudication is requir ed for South

Africa’s constit utional right to cat ch alight” (2008) 15 SAJELP 57 84

4 Kota & Kota “Real ising the Right to a He althy Environme nt: An analysis of the pol icy efforts, budge ting

and enjoyment of th e right to a healthy environm ent in South Africa – Working Pap er 19” Studies in

Poverty and In equality Inst itute 15 See also M Kidd Env ironmental Law 2 ed (2011) 300; K Klare “Legal

Culture a nd Transformative Con stitutionali sm” (1998) 14 SAJHR 146 -188

(2020) 31 Stell LR 55

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context of the Bill of Rights.5 The inter pretation proposed herein could assist

in providing much needed “clarit y and content” to the environmental rig ht.6

This art icle will examine the mean ing of well-being from the persp ective

of the principles of constitutional i nterpretat ion, particularly syst ematic and

teleological interpretat ion. It commences with an examination of the judiciar y

and the legislature’s interpretat ion of the term to date. Th is is followed by a

consideration of the interpretation of well-being: rst, in the immediate context

of section 24(a); secondly, in the context of section 24 as a whole; and nally,

in the context of the Constitut ion, with particular focus on const itutional goals

and values as well as the rights i n the Bill of Rights. The proposed rea ding

of the right in the context of the Bill of Rights hope s to give more practical

content to the environme ntal right throug h providing a baseline of meani ng

for this ill-dened te rm.

2 Well-being in case law and legislation

2 1 Well-being before the court

Feris noted in 2008 that ther e was “a marked dearth” in cases which util ised

and interpret ed the environmental right.7 Twelve years later, there has not been

much development.8 This “paucity in jurispr udence”9 means that i ndividuals

(and practitioners) are uncert ain about the scope of the environ mental right

and perhaps hesitant to rely on sect ion 24 in practice. This problem extends to

the meaning of well-being. Whi le references to well-being ar e often brief and

lacking in content, t here remains some inter pretive guida nce to be gleaned

from the jurispr udence. This section examines t he case law to date in order to

determine how the jud iciary interprets and und erstands well-being.10 The rs t

set of cases are those which explicitly mention well-being, however briey.

Minister of Health and Welfare v Woodcarb (Pty) Ltd (“Woodcarb”)11 was

decided under the Constit ution of the Republic of South Africa, 1993 (“Interim

Constitution”) and concer ned air pollution caused by the respondent’s sawmill

operations. The cour t held that the generation of smoke contain ing noxious

gases constituted a n “infringement of the r ights of the respondents’ neighbours

to ‘an environment which is not detr imental to their health and well-being’”.12

Although Woodcarb did not elaborate on the meaning of health or well-being,

5 The preamble of th e Constitution of the Republic of S outh Africa, 1996 states t hat the Constitution is

adopted with t he aim to “establish a so ciety based on democr atic values, social ju stice and fundam ental

human right s” and to “[i]mprove the qua lity of life of all citiz ens and free the po tential of each pers on”

6 Feris (2008) SAJHR 38

7 38

8 M Kidd “Envir onment” in I Cur rie & J de Waal (eds) The Bill of Rights Ha ndbook 6 ed (2015) 516 519

9 Feris (2008) SAJHR 38

10 What follows doe s not presum e to be an exhau stive discu ssion of every ca se dealin g with the env ironment al

right, but rat her an overview of the juris prudence which is most releva nt to the interpreta tion of well-

being, with pa rticular emphasis on t hose cases which mention the con cept explicitly Numerous cases

dealing wit h the environ mental right rely e xclusively on section 24( b) and do not offer much dir ect insight

into the nat ure or scope of section 2 4(a) The se cases have not been i ncluded in the discu ssion

11 1996 3 SA 155 (N)

12 Para 164 Thi s infri ngement was note d by the court i n addition to t he legislative viola tion of the

Atmospheri c Pollution Prevention Act 45 of 1965 at issu e in the case

56 STELL LR 2020 1

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