Loretta Feris

Constitutional environmental rights : an under-utilised resource

Abstract This article supports the principled proposition that all human beings have a fundamental right to an environment that is ecologically sound and does not threaten health or wellbeing. It also takes the position that we need a solid and detailed understanding of the content of the environmental right in the South African Constitution. It is particularly imperative that such content reflect the particular context within which the right operates. The article argues, however, that the content and value of South Africa’s environmental right, remains largely undefined. It reviews a number of decisions which have provided opportune moments to give content to the right, and in this regard focuses on two areas where jurisprudence may enhance the application of an environmental right. These developing principles of environmental law and interrogating the relationship between the environmental right and other constitutionally-entrenched rights.

Introduction: water and the law – towards sustainability

Tinariwen, a band of Tuareg musicians from the Sahara Desert region of northern Mali, named their 2007 album Aman Iman, which means ‘water is life’ in their language, Tamashek. It is hardly surprising that a group of nomads from the hottest and largest non-polar desert would regard water as so important, but it is trite that aman iman is true for everybody, not just desert-dwellers. The link between water and life is the basis of the defining question for exploration of Mars, for if there is evidence of liquid water, past or present, on Mars, then there exists the possibility of life. Fortunately, for life on Earth, both human and otherwise, water is ample on our planet, although distributed unevenly. For many people, such as the Tuareg, life revolves around finding water, whereas people in other parts of the world deal with the problems posed by too much water, such as flooding. The bottom line, however, is that life on Earth needs water. Yet many commentators are providing warnings that our water is under threat. Although there are huge amounts of water on Earth, less than 3 per cent of that water is fresh, and most of that is relatively inaccessible to humans and most other living species that rely on it. The small amount of accessible fresh water, mainly in rivers and in the ground, is suffering from various serious threats. The term ‘water crisis’ is one that is heard frequently. For example, a recent, influential publication is entitled The Global Water Crisis: Addressing an Urgent Security Issue (H. Bigas (ed.), Papers for the InterAction Council, 2011–2012 (UNU–INWEH, 2012)). The wellknown legal academic, Edith Brown Weiss, in her 2012 article ‘The Coming Water Crisis: A Common Concern of Humankind’, writes that ‘many articles proclaim fresh water to be the new environmental crisis of this century’ (‘The Coming Water Crisis: A Common Concern of Humankind’ (2012) 1:1 Transnational Environmental Law 153).

The Right to Access to Reproductive Health Care in the South African Constitution: A Real Victory for Women?

Many years into South Africa’s constitutional transition and with the second democratic government newly in place, it is maybe an opportune time to assess the victories gained and the challenges that still lie ahead. For women there have been significant successes in South Africa. Whereas the majority of South African women were previously disenfranchised, they now have at least 25 percent representation in parliament with eight cabinet ministers and eight deputy Cabinet ministers that are women.1 South Africa has a supreme Constitution with a justiciable Bill of Rights that offers civil and political as well as social and economic guarantees. The Constitution also makes provision for a Commission for Gender Equality to promote the achievement of gender equality.2 South Africa ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).3 Women in abusive relationships were recently afforded additional legal protection when amended legislation on domestic violence was accepted in Parliament.4 Pregnant women are provided with free health care and those who choose to terminate their pregnancy may now freely exercise this choice.5