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[1995] ZAConAsmRes 976
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Environmental Content in the New Constitution [1995] ZAConAsmRes 976 (1 March 1995)
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Council for the Environment CONTENTS
justice 8
Annexure 10
"The degradation of the environment has already reached alarming proportions
in many areas and further urgent steps are required to
save our natural heritage
and institute appropriate management systems to deal with these problems. The
quality of life of millions
of our people is being destroyed by a dangerously
polluted and destitute environment. The magnitude of some environ‑mental
problems has reached a stage where looming cata‑strophe seems almost
inevitable. Africa, and to some extent South Africa,
has been directly caught
up in this critical struggle to reverse the trend and save the environment and
the Continent. High population
growth and many ill-conceived and poorly planned
developments are exerting enormous pressures on the environment. If this trend
continues unabated, it will eventually leave us and succeeding generations with
a waste land." With these dramatic words, Dr D J de Villiers, MP, Minister of Environmental
Affairs and Tourism in his budget speech on 16 August
1994 sketched the need for
the protection of our environment. The Minister was not over-stating the
case. Immediate and drastic measures are required for the preservation of our
environment.
While an environmental ethic may exist in the South African common law, it is undeveloped in our case law. While it has been argued (1) that it would not be beyond the ingenuity of our courts to import an environmental ethic into the common law, the better view (2) is that given the state of environ‑mental degradation in our country and the urgent need for action, the most effective method of establishing an environmental ethic would be by way of legislation. The most effective legislation, indeed the only suitable legislation for the proper protection of an environmental ethic, would be the Constitution, from which the law-making bodies of the State draw their authority, which is binding on those bodies, and which can only be amended by extra-ordinary procedures.
Again, to quote Dr de Villiers in the speech referred to above: "Environmental matters are central to our daily lives. There is a
misconception that environmental conservation concerns mainly the
protection of
wild life. on the con‑trary, it is linked to every aspect of human
endeavour ‑it concerns the environment
where people live, work, do
business, play and relax. The environment is about people. It is
people-orientated." It is clear that the equitable distribution amongst all our citizens of the
resources of a sound environment will ensure a sound future
for South Africa.
In addition, a sound envi‑ronment protecting the biological diversity
found in South Africa will encourage
tourism which will in turn create jobs (3).
Environmental protection thus plays a vital role in the reconstruction and
development
of South Africa. All this was recognised by the drafters of the interim Constitution in enacting Section 29 thereof. It is even more important for the continued health, well-being, economic and social development of our people that a human right guaranteeing environmental protection be carried forward to the final Constitution now being drafted.
4.1 Resource conservation and management 4.2 Planning for development 4.3 The prevention of pollution All three constituent elements of the biosphere, air, land and water are
being increasingly affected by pollution. The degradation
of those resources
must be minimised by the application of appropriate technology at the cost of
the polluter.
"Every person shall have the right to an environment which is not detrimental to his or her health or well- being." The section is too anthropocentric. It accords no protection to the environment save insofar as human health and the vague and ill-defined concept of "well-being" is affected. In its present form, the clause does little more than simply restate the common law of nuisance. It will be effective only for the curbing of pollution where human health and "well-being" are concerned, but will not have any effect on renewable resource conservation, the maintenance of biological diver‑sity, or the wise use of non-renewable resources. The clause is akin in its effect to the Atmospheric Pollution Act, 1965 (Act 45 of 1965) (5). Its vagueness weakens the effective‑ness of that legislation. 6- ENVIRONMENTALLY SUSTAINABLE DEVELOPMENT It is acknowledged that South Africa is in urgent need of development. While
this must not be allowed to take place on a non-sustainable
basis and at the
expense of environmental concerns, it is important that urgent environmentally
sus‑tainable development not
be delayed by protracted litigation. Fear
has been expressed that a too liberally worded envi‑ronmental right would
open the
door to litigation preventing such development. It is considered,
having regard to the provisions of our legal system, particularly
in relation to
costs, that this threat is more illusory than real. More‑over, the threat
of such delays can be minimised in
several ways - 6.1 a participative approach to development should be adopted, so that interested members of the public are afforded an opportunity to express their views at an early stage of the process; 6.2 reasons for administrative decisions should be required as is the case in the interim Constitution (6); 6.3 the principles of integrated environmental management (IEM) should increasingly be adopted (7); 6.4 furthermore, legislation could establish a special tribunal to hear appeals in regard to decisions affecting the envi‑ronment with special procedures to avoid the time consuming procedures of conventional litigation, and ensure finality of. the decision on the development proposal concerned within a reasonable time (8). Tribunals as envisaged in the Develop‑ment Facilitation Bill may be able to fulfill this role. It is submitted that these measures will ensure that essential development is not stultified while according environmental concerns their rightful place in the planning process. South Africa must at all costs avoid,' and ensure that the necessary procedures are in place to avoid development at the expense of environmental concerns. One cannot build successful development on a bankrupt environment. In short, good environmental management is good business.
It is not clear whether directive principles, or principles of State policy, will be incorporated into the Constitution, such as is the position in India and Namibia. If it is decided that such directive principles are to be incorporated into the Constitution, then it is suggested that the right to be incorporated in the Bill of Rights be of a relatively limited nature. It is further considered that the right should contain within itself a correlative duty upon all persons, the State and all juristic persons to protect the environment. The need for this duty arises from the fact that the Bill of Rights as presently constituted, and as we assume it will be constituted in the new Constitution, is binding as between citizens (and including in many cases juristic persons) and the State, but is not binding between citizens inter se. The Bill of Rights is accordingly said to have "vertical application" but not "horizontal application". It is submitted that by inserting the correlative duty to protect the environment and placing that duty not only on the State but upon natural and juristic persons, the provisions of the right can be given "horizontal effect" and be enfor‑ceable by natural persons against other natural persons and juristic persons, as well as against the State. It is further clear that the environment as a whole, in every part of the national state, affects the interests of all inhabitants of the national state, either directly by for example, atmospheric pollution, loss of food production, or indirectly, for example through an effect on the national economy through reduction of tourism or destruction of export crops or products. The right to be included in the Consti‑tution must, therefore, be a right to an ecologically sound environment within the whole of the national state.
Having regard to the above considerations and assuming that directive principles are to be incorporated into the Consti‑tution, it is suggested that the clause to be contained in the Bill of Rights should read as follows - "All persons shall have the right to a sustainable environment which is
conducive to health and wellbeing. All natural and juristic
persons shall have
the duty to protect and to promote the protection, sustainability and quality of
that environment." The directive principles which will be allied to that right fall into the three categories referred to in paragraph 4 above. The first group of principles relates to resource conservation and exploitation and the need for sound land-use planning for development and takes into account globally recognised norms such as the need for sustainable development and the maintenance of bio-diversity. The second group includes generally accepted norms relating to pollution control and waste management such as treatment of waste at source, reduction, re-use and recycling of material. The following directive principles are suggested - 8.1 The State and its citizens shall ensure that the land and natural
resources are regulated and utilised in a manner which: 8.1.1 benefits both present and future generations; 8.1.2 promotes the ideal of sustainable development; 8.1.3 maintains ecosystems and related ecological processes, in particular,
those important for food production, health, and other
aspects of human survival
and sustainable development; 8.1.4 maintains biological diversity by ensuring the survival of all species of fauna and flora at natural rates of extinc‑tion, particularly those which are endemic or endangered; 8.1.5 integrates environmental considerations with strategic planning,
development and land-use planning whilst also applying techniques
such as
Integrated Environmental Management (IEM) and Environmental Impact Assessment
(EIA); 8.1.6 promotes the promulgation, maintenance and development of areas of cultural, historic and natural interest. The State shall, insofar ar as waste management and pollution control is concerned, actively promote policies for -
"Current and future generations have the right within the national state to a sustainable environment which is conclusive to health and wellbeing, where pollution and waste generation are minimised and where environmental considerations are taken into account in land-use planning and development. All persons, including the State and its organs, and juristic persons, have the duty to protect and to promote the protection, sustainability and quality of that environment."
One of the principle reasons for this concern has been that in terms of the South African common law the owner of property has what is known as the ius utendi, fruendi et abutendi. This has been interpreted as the right to use and abuse, indeed to destroy ones own property, and while that right has obviously been much curtailed by legislation (9) it is desirable that the concept of trusteeship be applied to the ownership of land. The Council would accordingly propose that in the reconsideration of Section 28 of the interim constitution for purposes of the new constitution that Section 28(1) be amended to read: "28.1 Every person shall have the right to acquire and hold rights in property, to the extent that the nature of the rights permit to dispose of such rights, and to use immovable property on the basis that every owner of immovable property holds that property as a trustee on behalf of future genera‑tions".
The provisions of Sections 7, 23 and 24 of the interim Con‑stitution are of paramount importance to the exercise and protection of any environmental right enshrined in the Constitution and should be retained in the final Consti‑tution.
12.1 There is a requirement for environmental
protection in the Constitution. 12.2 The present Section 29 of the interim Constitution offers little or no
environmental protection and does little more than restate
the common law of
nuisance. 12.3 An environmental right should contain the following ele‑ments
- 12.3.1 resource conservation 12.3.2 land-use and development planning 12.3.3 pollution control 12.4 This can be achieved either by the incorporation of an at‑tenuated human right plus directives of State Policy, or by the inclusion of a comprehensive human right. Model clauses for each alternative will be found in paragraphs 8 and 9 above. 12. 5 The justification for the proposals made has been set out very briefly and with little attempt to set out the full reasons for the proposals or to deal with possible counter- arguments. The Council for the Environment will seek a meeting with the Theme Committee concerned in order to present a full motivation for the proposals and to attempt to deal with any arguments or difficulties which the members of the Theme Committee may have in regard to the proposals
made.
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"Human rights and environmental law: The case for a bill of rights" P D Glavovic 1988 CILSA 52.
4. The Environmental Human Rights and a New South African Constitution. J
Glazewski 1991 South African Journal of Human Rights p.167. 5. Section 1(1) of Act 45 of 1965.. The definition "Best Practical means "refers to the provision of the necessary applian‑ces and the adoption of any other methods which..... may be reasonably practicable and necessary for the protection of any section of the public against the emission of poisonous or noxious gasses, dust or..... fumes. The test for the grant of a registration certificate without which a "sche‑duled process" in terms of the act may not be carried on, is the best practicable means test. With its emphasis on human health rather than environmental protection, the Act has permitted air pollution on a massive scale in for example, the Eastern Transvaal Highveld, which has led in this area to the pollution of air, soil and water, the possible disease of the forests in the Eastern Transvaal, with potentially serious health and economic consequences, and possible trans-boundary, effects both regional and international. See in this regard the National Report to UNCED held in Rio de Janeiro in June 1992 prepared by the Department of Environ‑mental Affairs and Tourism in March 1992 pages 82 to 86. See further "Environmental Management in South Africa" Fuggle and Rabie (Editors) Juta 1992 - pages 417 to 455, especially at 426 - 430.
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