The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

Author: Paul Nkoane

ISSN: 2521-2605
Affiliations: BCom, LLB (UNISA), LLM (UCT) Lecturer: University of South Africa (UNISA)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 149 – 174
https://doi.org/10.47348/JCLA/v8/i2a6

Abstract

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

Author: Lisa Chamberlain

ISSN: 2616-8499
Affiliations: BA LLB (Wits) LLM (Michigan). Senior Lecturer, School of Law, University of the Witwatersrand, Research Associate, Southern Centre for Inequality Studies, University of the Witwatersrand
Source: South African Journal of Environmental Law and Policy 2020, p. 5 – 38

Abstract

Human rights defenders’ lives, activism, and livelihoods are under threat globally. This is a particular reality for those working to protect land and natural resources. This article examines one of the forms in which environmental activists are being targeted in South Africa, namely the abuse of litigation processes to silence dissent, referred to as Strategic Litigation Against Public Participation (SLAPP suits). This article examines the development of SLAPP suits in South Africa and the impact that they have on the environmental sector and environmental rights. It then discusses some of the latest developments in SLAPP suits locally, including how in recent years, in addition to the more traditional defamation-style SLAPP suit, SLAPP suits have started to take new forms such as costs proceedings and allegations of intellectual property infringement. Lastly, this article explores possible responses to SLAPP suits, concluding that serious consideration needs to be given to anti-SLAPP legislation, the use of the special plea mechanism, and the opportunities for enhanced advocacy and solidarity action that SLAPP suits provide.

Informing the regulatory framework on water and sanitation in Southern Africa: The emerging governance framework accompanying SDG 6

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Informing the regulatory framework on water and sanitation in Southern Africa: The emerging governance framework accompanying SDG 6

Authors: Germarié Viljoen and Bronwen Qumbu

ISSN: 2616-8499
Affiliations: LLB, LLM, LLD, Senior Lecturer in Law, North-West University; LLB, LLM, Lecturer in Law, North-West University
Source: South African Journal of Environmental Law and Policy 2020, p. 39 – 61
https://doi.org/10.47348/SAJELP/v26/a2

Abstract

At least 40% of the people in the Southern African Development Community (SADC) region do not have access to safe water and sanitation, rendering them vulnerable to prolonged conflicts and catastrophes, including exposure to water-borne diseases, other pandemics, poverty and human suffering. Although several international and African regional treaties support the human rights to water and sanitation, the ability of the SADC regulatory framework to give effect to these rights is concerning. In fact, available literature on the SADC’s ability to meaningfully realise these rights is fragmented and scant. This article examines theoretically a novel governance approach to the implementation of Sustainable Goal 6 of the United Nations 2030 Agenda. The article argues that the coercion through regional ‘goal setting’ may provide a conclusive, regional response to the continuing development of water and sanitation rights in the SADC region.

Vertically-challenged? Interrogating intergovernmental coordination in Kenya’s municipal solid waste management (MSWM) for sustainability

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Vertically-challenged? Interrogating intergovernmental coordination in Kenya’s municipal solid waste management (MSWM) for sustainability

Authors: Wambua Kituku, Collins Odote, Charles Okidi and Patricia Kameri-Mbote

ISSN: 2616-8499
Affiliations: BSc (JKUAT) LLB LLM PhD candidate (Nairobi); LLB LLM PhD (Nairobi); BA (Alaska) MA PhD (Tufts); LLB (Nairobi) LLM (Warwock) LLM (Zimbabwe) LLD (Nairobi) PhD (Stanford)
Source: South African Journal of Environmental Law and Policy 2020, p. 62 – 104
https://doi.org/10.47348/SAJELP/v26/a3

Abstract

The concept of environmental integration offers a viable paradigm for realisation of sustainability through incorporation of environmental protection considerations in policy and legislation. Pursuing optimal environmental integration between various levels of governance – a concept known as vertical environmental integration (VEI) – is contingent on effective and adequate intergovernmental coordination. Using municipal solid waste management (MSWM) as a reference case, this paper explores the pursuit of VEI through intergovernmental coordination in Kenya. The paper argues that the prospects of entrenching VEI are undermined by inadequate and incongruent intergovernmental coordination mechanisms and strategies as well as by the lack of clarity in distribution of regulatory responsibilities in MSWM between the national and county levels of government. This is despite the adoption of a transformative Constitution in 2010 with a focus on devolution that emphasises coordinated and consultative relationships between the two levels of government. Lessons from South Africa offer prospects for improving intergovernmental coordination to achieve sustainability in MSWM.

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.

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

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

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

Authors: Max du Plessis & Muhammad Zakaria Suleman

ISSN: 1996-2177
Affiliations: Senior Counsel, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal; Adjunct Professor, Nelson Mandela University; Advocate, KwaZulu-Natal Bar
Source: South African Law Journal, Volume 138 Issue 4, p. 731-747
https://doi.org/10.47348/SALJ/v138/i4a3

Abstract

eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd concerns personal costs orders against public officials. The high court sought to extend itself beyond the merits of a tender dispute in its main judgment by engaging in an inquiry about the officials implicated and whether they should be penalised by way of a personal costs order. In its costs judgment, certain individuals within the eThekwini Municipality were mulcted with personal costs orders. On appeal, a full bench cautioned against a court reaching conclusions about officials too quickly and drawing adverse inferences from facts that are not properly pleaded. This is a judgment that has mapped out the procedural steps necessary to make personal costs orders against public officials.