Conservation servitudes in South Africa

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Conservation servitudes in South Africa

Authors: Marthán Theart and Kirstin Meiring

ISSN: 2616-8499
Affiliations: BA LLB (Stellenbosch), LLM (Environmental Law) (UCT), Legal Specialist, South African National Biodiversity Institute; LLB, LLM (Environmental Law) (UCT), Environmental Law Intern, South African National Biodiversity Institute
Source: South African Journal of Environmental Law and Policy 2020, p. 105 – 133
https://doi.org/10.47348/SAJELP/v26/a4

Abstract

In recent years, the conservation servitude has gained traction as a biodiversity stewardship mechanism for the protection of biodiversity and ecological infrastructure on private land in South Africa. This article provides insight into what a conservation servitude is and showcases how it has been used in practice by non-governmental organisations, environmental authorities and municipalities in South Africa to further conservation objectives. It explores the common and statutory law limitations on the use of servitudes for conservation purposes and identifies some of the innovative strategies that have been used, by especially non-government organisations and municipalities, to overcome these limitations. The similarities and differences between conservation servitudes and other mechanisms used in South Africa to secure areas of biodiversity significance or ecological infrastructure are considered, before identifying the various contexts in which conservation servitudes are currently being used in practice.

Case Notes: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Case Notes: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

Author: Alexander Paterson

ISSN: 2616-8499
Affiliations: BSocSci LLB LLM (Environmental Law) PhD (UCT) Professor of Law, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town
Source: South African Journal of Environmental Law and Policy 2020, p. 134 – 160
https://doi.org/10.47348/SAJELP/v26/a5

Abstract

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

Case Notes: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Case Notes: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

Author: Jamil Ddamulira Mujuzi

ISSN: 2616-8499
Affiliations: LLB (Makerere) LLM (Pret) LLM (UFS) LLD (UWC), Lecturer, Faculty of Law, University of the Western Cape
Source: South African Journal of Environmental Law and Policy 2020, p. 161 – 178
https://doi.org/10.47348/SAJELP/v26/a6

Abstract

In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the first ever private prosecution under section 33 of the National Environmental Management Act, British Petroleum (BP) was prosecuted and convicted for constructing filling stations without the necessary authorisation. The judgment deals mostly with the issue of locus standi to institute a private prosecution for environmental offences. The purpose of this note is to highlight the issues that emerge from the judgment. The note also discusses the role that could be played by the National Director of Public Prosecutions should they decide to take over a private prosecution instituted under section 33 of NEMA.

Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

Author: Thomas Coggin

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 4, p. 697-715
https://doi.org/10.47348/SALJ/v138/i4a1

Abstract

In the Western Cape High Court decision of Adonisi, Gamble J framed the prevalence of well-located land scarcity in Cape Town with the phrase, ‘they’re not making land anymore’. In this case note, I present the court’s findings and reasoning in ruling against the Western Cape Provincial Government, and I argue we can read the judgment as an expression of the social function of property through two lenses: first, the manner in which the court situated the dispute within the spatial and historical geography of Cape Town; and, secondly, the way in which it prefaced the use value of property through its emphasis on meaningful participation and on custodianship. Both lenses indicated the duty incumbent on the province as landowner and in service of its obligations under s 25(5) of the Constitution, which are important when resolving similar disputes given the scarred ownership landscape characterising the South African urban and spatial environment.

Notes: Social media firestorms and the protection of smaller enterprises: Ubuntu Baba and Woolworths

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: Social media firestorms and the protection of smaller enterprises: Ubuntu Baba and Woolworths

Authors: Peter Kituri, Andrew Hutchison & James Lappeman

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa; Associate Professor, Department of Commercial Law, University of Cape Town; Senior Lecturer, School of Management Studies, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 715-731
https://doi.org/10.47348/SALJ/v138/i4a2

Abstract

In this note we explore the use of social media as a tool to help small enterprises exert pressure on large corporations. Specifically, we use the case study of a small South African business (Ubuntu Baba) that exerted a powerful non-legal sanction on major retailer Woolworths through social media. This entrepreneur-initiated social media firestorm led to victory in the court of public opinion and a quick settlement. This low-cost option was possibly chosen in the face of the costs and uncertainties of more conventional legal recourse. Small businesses are an important component of the South African government’s strategy for economic development and employment creation, yet the existing laws protecting weaker parties often leave small businesses exposed to corporate power-play. This form of corporate power imbalance is a core theme underlying our case study.