Mining in the Mabola Protected Environment

by | Nov 15, 2020 | SAJELP, SAJELP 2019

Mining in the Mabola Protected Environment

Author Amanda Mkhonza

ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 185 – 200

Abstract

Soon after declaring the Mabola Protected Environment in terms of the National Environmental Management: Protected Areas Act, permission to undertake coal mining activities within this environmentally sensitive and ecologically important area was granted by the Ministers responsible for the environment and mineral resources in terms of the same Act. This statutory anomaly – that allows for mining within protected environments – sits at the heart of this case and is interpreted by our judiciary for the first time. The Mabola judgment crystalises the sequence of authorisations required for mining within protected environments whilst clearly distinguishing the roles of the relevant Ministers when called to act as custodians of South Africa’s protected environments.

Promoting the Right to Environmental Justice Through the Supreme Court’s Liberalisation of Locus Standi in Nigeria

by | Nov 15, 2020 | SAJELP, SAJELP 2019

Promoting the Right to Environmental Justice Through the Supreme Court’s Liberalisation of Locus Standi in Nigeria

Authors John Oluwole A Akintayo and David Tarh-Akong Eyongndi

ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 201

Abstract

This note, which uses desk-based research methodology, reviews the Supreme Court’s decision in Centre for Oil Pollution Watch v N.N.P.C. by focusing on the philosophical basis and development of locus standi in Nigeria, its effects on adjudication, and the effect of the judgment in advancing environmental justice and public interest litigation in Nigeria. Locus standi ensures that only a person who has a genuine legal interest can set in motion a judicial process either to protect the interest or seek redress where the interest has been infringed upon. Locus standi protects the courts from being accessed by busybodies or meddlesome interlopers, and it relates to the complainant and not the complaint. This note argues for the promotion of environmental justice through public interest litigation based on the provisions of the Fundamental Rights Enforcement Procedure Rules (FREPR) 2009. Against this backdrop, the note argues that the judgment is a welcome development and urges other public-spirited private stakeholders, particularly in the Niger Delta Region (NDR) where there is brazen environmental degradation resulting from the activities of multinational oil companies, to explore it to forestall environmental degradation from ravaging the region. The decision provides judicial approval of the liberalisation of locus standi by the FREPR 2009.

A Sin Committed by the (Suspended) SADC Tribunal : the Erosion of State Sovereignty in the SADC Region

by | Sep 27, 2020 | SAYIL, SAYIL 2018

A Sin Committed by the (Suspended) SADC Tribunal: the Erosion of State Sovereignty in the SADC Region

Authors Moses Retselisitsoe Phooko

ISSN: 2521-2583
Affiliations: University of Johannesburg and High Court of South Africa
Source: South African Yearbook of International Law, 2018, p. 1 – 19

Abstract

State sovereignty was once the sacrosanct and unquestionable characteristic of statehood under international law. International law prohibited any form of intervention by one state in the domestic affairs of another state without the latter’s consent. However, this is no longer the position. It appears that state sovereignty is gradually losing its once inviolable character due to the emergence of human rights, subregional organisations and judicial organs such as the Southern African Development Community (SADC) and the SADC Tribunal. The aim of this article is to critically discuss the impact of the decisions of the SADC Tribunal on state sovereignty within the context of SADC. I argue that by ratifying the Treaty of the Southern African Development Community (SADC Treaty), SADC member states have given away a certain portion of their sovereignty.

The Principle of Non-Refoulement in South Africa and the Exclusion from Refugee Status of Asylum Seekers Who Have Committed Offences Abroad: a Comment on Gavric v Refugee Status Determination Officer, Cape Town and Others

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The Principle of Non-Refoulement in South Africa and the Exclusion from Refugee Status of Asylum Seekers Who Have Committed Offences Abroad: a Comment on Gavric v Refugee Status Determination Officer, Cape Town and Others

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2583
Affiliations: University of the Western Cape
Source: South African Yearbook of International Law, 2018, p. 20 – 46

Abstract

South Africa is home to thousands of asylum seekers and refugees, especially from African countries. In order to protect the rights of refugees and asylum seekers, South Africa has ratified international and regional human rights treaties and enacted domestic legislation. The domestic legislation is the Refugees Act (the Act). Section 4(1) of the Act provides for three grounds on which a person may be excluded as a refugee. That a person ‘does not qualify for refugee status for the purposes of this Act if there is reason to believe that he or she – has committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment’ is one of the grounds provided for in section 4(1)(b). Section 2 of the Act embodies the principle of non-refoulement. In 2018, the Supreme Court of Appeal and the Constitutional Court handed down judgments clarifying how section 4(1)(b) should be implemented in practice as well as the relationship between sections 2, 3 and 4(1)(b) of the Act. This was comprehensively dealt with by the Constitutional Court in Gavric v Refugee Status Determination Officer, Cape Town and Others. The purpose of this article is to use this judgment as a springboard to highlight the issues that South African courts, especially the Constitutional Court, have to address when determining whether or not a person should be excluded as a refugee under section 4(1)(b) of the Act. The highlighted issues are the criteria to determine whether or not the applicant has had a fair trial; the relevance of the Hollington rule to foreign convictions; and the admissibility of hearsay evidence.

The Historical Development of International Organisations with Separate Legal Personality Since the 19th Century

by | Sep 27, 2020 | SAYIL, SAYIL 2018

The Historical Development of International Organisations with Separate Legal Personality Since the 19th Century

Authors Michelle Frances Diers

ISSN: 2521-2583
Affiliations: University of Pretoria
Source: South African Yearbook of International Law, 2018, p. 47 – 70

Abstract

An examination of the development of the separate legal personality of international organisations since the 19th century demonstrates that international organisations do in fact exist as separate legal entities that operate independently from the states that establish them. Notably, when an international organisation is established, it is the founding members of these organisations who determine whether the organisation will possess separate legal personality or not. Such personality may be granted either expressly or by implication. Consequent to the existence of the separate legal personality of international organisations, these entities may possess rights and duties under international law. It is therefore clear that these organisations may be held responsible for the breach of a primary obligation that arises pursuant to the conduct of the organisation in question.