Anél du Plessis

South Africa's constitutional environmental right (generously) interpreted : what is in it for poverty?

Abstract Section 24 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to an environment that is not detrimental to his or her health or well-being. The nature and ambit of the environmental right relate to ss 27(1) and (2), which provide for a right of access to health-care services and sufficient food and water. Yet the scope of s 24 transcends the modalities of what is necessary for people’s ‘biological survival’, including physical health. Departing from the viewpoint that a strong link exists between the vulnerable poor and the different constitutional entitlements enshrined in s 24, this article explores how poverty influences the way in which the normative content of the constitutional environmental right should be interpreted and applied. Following an interpretative approach, the call is made for an expansive or generous interpretation of the environmental right that takes into account the broader purposes and interests which this right and the Constitution in general, seem to protect.

The Heat is On: Local Government and Climate Governance in South Africa

Departing from the fact that climate change poses localized effects, this article critically considers from a legal perspective the role of local authorities in the South African government’s response to climate change. A brief review of the relevance of climate mitigation and adaptation is followed by an explanation of what these concepts mean for local government. The article then discusses the extent to which the country’s environmental and local government law and policy framework provides for municipalities’ participation and involvement in climate governance. The article identifies strengths and weaknesses in relation to the local sphere of government’s formal involvement in climate governance vis-a-vis authorities in the provincial and national spheres. It concludes that, as a result of their proximity to the effects of climate change, municipalities have a critically important role to play in the climate governance effort, despite the patchwork of environmental and local government laws and lack of explicit, consolidated policy and legal arrangements

Climate change, public trusteeship and the tomorrows of the unborn

Abstract The impacts of climate change on human and ecological systems and the increasing volatility of life situations demand of scholars to critically evaluate governments’ protection of the natural resource base and the interests that communities have in a safe, healthy and preserved environment. It begs the question what the South African government must do as national ‘public trustee’ to protect the environmental interests and rights of unborn generations of South Africans. The recently adopted United Nations Secretary-General’s Report on Intergenerational Solidarity and the Needs of Future Generations reiterates the relevance of the focus on the environmental and other needs of future generations. This article considers how the government as public trustee ought to approach ‘climate-resilient development’ as provided for in the Climate Change Response White Paper to ensure a long-term response adequate to protecting the environmental interests and rights of the present and future generations.

The promise of ‘well-being’ in Section 24 of the Constitution of South Africa

This article is premised on the understanding that a meaningful nexus exists between the environment, human health and well-being – three notions with independent meanings but all living in s 24(a)...Abstract This article is premised on the understanding that a meaningful nexus exists between the environment, human health and well-being – three notions with independent meanings but all living in s 24(a) of the Constitution of the Republic of South Africa, 1996. The link that lies therein is that human health and well-being ‘are influenced by environmental conditions both positively and negatively, with significant economic and social consequences’.1 The flipside of this understanding is that the duties of government and others arising from the constitutional environmental right are multifaceted. Following a discussion on the meaning of well-being, this article explores some of the implications of the fact that the concept of well-being receives protection in terms of s 24(a) of South Africa’s Constitution. Particular attention is paid to why and how public authorities must pursue the total suite of outcomes envisaged in the constitutional environmental right as opposed to mere environmental compliance. This discussion incorporates the High Court’s underlying message to the executive in the recently decided matter of Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others and further assesses the role of impact assessment in environmental authorisation processes.

Governing authorities in the same boat and a tale of two schedules: Marius Nel v Hessequa Local Municipality (2015)

This article responds to the tension inherent in the Constitution of the Republic of South Africa 1996 which lists ‘the environment’ proper as a function of national and provincial government. The authors discuss one of the arguments raised in the recently decided case of Marius Nel and Others v Hessequa Local Municipality and Others (2015) with particular emphasis on what the court’s reasoning adds to the growing body of jurisprudence on local government’s authority to govern environmental matters and the need for cooperative environmental governance in the South African context. The article features an overview of the relevant facts and findings in the Hessequa case, followed by a discussion of the implications of the court’s judgment.

Climate Change Communication in Higher Education Institutions: The Case of the North-West University in South Africa

In the current context of the limited understanding of climate change, universities, among other sectors of society, must help to foster climate change communication. In addition to innovative teaching and research, they may be expected to promote initiatives and strategies towards a better understanding of the multidimensional nature and effects of climate change. By engaging with people who are part of the problem but also those future decision-makers who can offer solutions, universities are ideally situated to increase climate change awareness. Against this backdrop of the climate change communication discourse, this paper analyses a novel experience at the North-West University (NWU) in South Africa. Several activities were undertaken at the Potchefstroom Campus of the university in 2016 as part of the international initiative, “Global Climate Change Week” and under the heading “Ready to Act?” These activities (involving different scholarly fields e.g. arts, natural science, education and law) were organised for the first time and attracted a multidisciplinary group of students, academics and university staff who connected with one another and with the realities, challenges and opportunities of climate change. The experience presented in this paper conceptually highlights the role of universities in promoting communication for a more holistic understanding of climate change. In addition, it shows that universities may offer a meaningful platform for broader and multidisciplinary academic communities to discuss its effects, to emphasise the solutions and, ultimately, to motivate people towards taking action.

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

In this article, large-scale infrastructure development is situated within the sustainability paradigm with an emphasis on questions about environmental impact. While the focus is on South Africa, the article contributes to the broader body of law and governance scholarship that deals with the complexity inherent in the search for infrastructure development that meets the demands of sustainability. The authors attend specifically to the role of cooperative environmental governance (CEG). They set out to explain the existence of and difficulty surrounding the legal duty of the South African government to pursue sustainability via its development-related decision-making processes. The prominence of the notion of cooperative government in South Africas democratic government system is highlighted where after the authors evaluate the role of CEG in government decisions that they regard to be in need of an inclusive and holistic approach to sustainability. The difficulty inherent 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 conclusion, 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 government decisions pass the tests of the Constitution and framework environmental legislation.