ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 137 Issue 3, p. 582-588
None
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 5 – 41
This article focuses on transboundary water governance in light of adaptation to climate change. A conceptual discussion on adaptation in transboundary water agreements aims to provide a background for the analysis of the legal and policy regimes in Finland and Southern Africa. This conceptual discussion identifies important aspects that need to be considered for law and policy aiming to regulate adaptation in transboundary water agreements. Chosen examples in each jurisdiction are analysed in order to see to what extent they provide for adaptation to climate change. This analysis in each jurisdiction is conducted with the conceptual background discussion in mind. After analysing the specific regulatory instruments in both jurisdictions, this article concludes by identifying some common ground in the adopted approaches and by providing some suggestions as to the way forward when regulating adaptation in transboundary water agreements.
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 42 – 72
Wetlands are generally considered to be habitats that are sensitive to development and land transformation, as well as pollution. Furthermore, as South Africa continues within the domain of climate change, and, with that, becomes increasingly water stressed, greater decision-making and societal emphasis needs to be placed on safeguarding wetlands for the wellbeing of current and future generations. In this article, the legislative provision in South Africa’s environmental law that could be drawn upon to rehabilitate and protect the country’s wetlands is investigated. These sensitive systems, save for rehabilitation, enjoy many safeguarding provisions distributed across the country’s environmental law. It is concluded that this legislative approach to wetland protection is overly complex and fragmented, and hence may not have the necessary gravitas to achieve the intended outcome. It is further concluded that the efficient and effective protection of wetlands requires a consolidation of the applicable law into (ideally) a single statute. Furthermore, the South African legislature is encouraged to provide for greater emphasis on the rehabilitation of stressed and damaged wetlands.
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 73 – 101
Environmental management inspectors, the so-called Green Scorpions, have a constitutional imperative to play an important role in upholding the environmental right by taking enforcement action where there is non-compliance with environmental legislation. The courts play their role in giving effect to the environmental right in the way that they adjudicate disputes. When they view a dispute through rights-based glasses, their judgments can have profound implications for the everyday environmental experiences of ordinary South Africans. In that sense at least, the courts and the Green Scorpions ought to be allies as they are working towards the same goal, namely making sure that the environmental right is tangible to the public. This article discusses the High Court’s (Gauteng Division) adjudication of a dispute involving alleged non-compliance with a waste management licence. It highlights the implications of the court’s failure to locate the dispute in the context of the environmental right and discusses how the court’s interpretation of the compliance and enforcement provisions in environmental legislation drastically curtails the powers of the Green Scorpions in respect of waste management transgressions.
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 102 – 145
Many parts of South Africa’s inland and coastal areas are awash with plastic pollution. At present, government appears to be focusing its efforts on four priorities to address plastic pollution, namely: the plastic bag levy, extended producer responsibility measures, the potential ban of problematic plastic products and domestic waste service provision. This analysis seeks to critically analyse the approach adopted in relation to these priorities with a view to proposing refinements and alternatives, within the broader context of the nuanced statutory mechanisms available to manage waste under the National Environmental Management: Waste Act 59 of 2008 (Waste Act). It does so by attempting to delineate the primary causes and contributing factors to plastic pollution; outlining the existing regulatory landscape, and interrogating these priorities and the manner of their application within that context. It concludes that whilst some traction has been made, some ten years after the Waste Act’s promulgation, a lack of policy coherence and ambition, knowledge gaps, disputes relating to financial models, and uncertainty about the socio-economic implications of measures are hampering the timeous implementation of much needed statutory measures.
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 146 – 184
Concerned by the reckless dumping of Western toxic waste in Africa and the associated environmental, health and social problems, 12 African countries negotiated and adopted the Bamako Convention on the Ban into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako Convention), because the Basel Convention, a multilateral agreement, failed to address the concerns of the developing countries regarding the toxic waste trade. The Bamako Convention came into force in 1998 with the objectives of eradicating all forms of hazardous waste importation into Africa, minimising waste production, and regulating transboundary shipments and disposal of waste among member states, but it remains to be seen whether these objectives have been achieved after 20 years.
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 185 – 200
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.
ISSN: 2616-8499
Affiliations:
Source: South African Journal of Environmental Law and Policy 2019, p. 201
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.
ISSN: 2521-2583
Affiliations: University of Johannesburg and High Court of South Africa
Source: South African Yearbook of International Law, 2018, p. 1 – 19
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.
ISSN: 2521-2583
Affiliations: University of the Western Cape
Source: South African Yearbook of International Law, 2018, p. 20 – 46
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.