The judiciary’s role in shaping urban space in South Africa as per the Sustainable Development Goals

by | Jun 5, 2020 | SAJELP, SAJELP 2018

The judiciary’s role in shaping urban space in South Africa as per the Sustainable Development Goals

Authors Anél du Plessis

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 5 – 44

Abstract

The international community sees cities taking the global development agenda forward in the coming years. The recently adopted Global Sustainable Development Goals (SDGs) include a distinct goal dedicated to cities, SDG 11, complemented by the subsequent release of the United Nations’ New Urban Agenda (2016). While these global policy developments and urbanisation itself are celebrated for their potential to help make cities more prosperous, many cities of the world have been described as being ‘grossly unprepared for the multidimensional challenges associated with urbanisation.’ Scholars from disciplines such as urban geography, planning, public administration, political theory and sociology continue to grapple with this complexity in the global north and south. For decades, cities in South Africa have also been growing unsustainably. In response to some of these challenges, the national government adopted the White Paper on Local Government (1998) and subsequently a number of national local government laws and policies. The premise is that the South African government is committed in its entirety to the pursuit of safe, sustainable, resilient and inclusive cities and that this promise translates into a complex range of responsibilities for the national, provincial and local authorities as well as the three branches of government. These responsibilities are not clearly defined, and even if they were, legally relevant conflict is bound to arise at some point for the courts to resolve. This article questions the role of the courts in South Africa in deciding matters that intersect with issues of urban safety, sustainability, resilience and/or inclusivity. The analysis is done with reference to a selection of recent judgments where the courts had to pronounce on municipal governing authority, urban development, municipal service delivery and the notion of accountable and responsive local government.

The camel at the cutting edge: Animal welfare, environmental law, private prosecution and the three judgments in NSPCA v Minister of Justice

by | Jun 5, 2020 | SAJELP, SAJELP 2018

The camel at the cutting edge: Animal welfare, environmental law, private prosecution and the three judgments in NSPCA v Minister of Justice

Authors Adrian Bellengère and Ed Couzens

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 45 – 86

Abstract

This analysis explains how an incident of attempted slaughter of two camels for religious purposes set off a chain of events and judgments that has the potential significantly to enlighten our understanding of the position of animal welfare-related law in South Africa, and the overlap between animal welfare and environmental law. Three judgments are recounted and then commented upon – in the High Court, the Supreme Court and the Constitutional Court. It is explained that a number of misunderstandings of the legal position, by legal authorities and courts, have prevented the National Society for the Prevention of Cruelty to Animals – a juristic person mandated to take legal steps to prevent animals from being cruelly treated – from employing the full range of legal tools that ought to be available to it, including the right to prosecute privately when the National Prosecuting Authority declines to prosecute. The Constitutional Court has ultimately decided that the NSPCA does have this right; but it is explained that the judgment does not show as much understanding of the legal position as would have been desirable. In particular, it appears that the nexus between animal welfare law and environmental law has not been well understood; and it is suggested that the National Environmental Management Act of 1998 provides for a right of private prosecution that could, and should, be employed in circumstances such as these.

Municipal flood management in South Africa: A critical reading of recent case law

by | Jun 5, 2020 | SAJELP, SAJELP 2018

Municipal flood management in South Africa: A critical reading of recent case law

Authors Angela van der Berg

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 87 – 118

Abstract

Natural disaster losses and people’s exposure to natural hazards are increasing all over the world. Human-induced climate change is likely to result in a continuing upward trend in the occurrence of natural disasters. Recent studies indicate that flooding is the most frequently occurring natural disaster. In the urban context, flooding impacts more people than any other type of natural disaster. In South Africa specifically, climate change has resulted in infrequent but heavy rains and flash floods punctuating the normally arid and semi-arid conditions. Between 2011 and 2018 the country experienced severe flash flooding in several of its urban areas. The occurrence and severity of flooding seems to have increased, resulting in damage to infrastructure, agriculture, property and human health and well-being. South Africa boasts an extensive legal framework for disaster management including laws and policy on other matters related to disaster risk reduction. Nevertheless, the extent to which government, specifically municipalities, are legally bound to prevent damage caused by natural disasters, especially in the event of flooding, remains unclear. The uncertainty seems to be exacerbated by a lack of clarity in legislation and by contrasting judicial views. In light of this uncertainty, this paper aims to critically determine the extent to which South African law places a duty on municipalities to prevent flood damage. The paper pays specific attention to South Africa’s disaster management legislation, read with the recently decided cases of Abbott v Overstrand Municipality (2016) and Propshaft Master (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality (2017).

Drought-tolerant GM maize as a climate-smart measure in South Africa: Promises, perils and precaution

by | Jun 5, 2020 | SAJELP, SAJELP 2018

Drought-tolerant GM maize as a climate-smart measure in South Africa: Promises, perils and precaution

Authors Odile Lim Tung

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 119 – 154

Abstract

Due to global warming, the likelihood of droughts may increase and more effective management approaches are necessary with regard to water in the medium to longer term. Africa as a drought-prone continent is heavily impacted with its smallholder farmers who rely mainly on rainfall for their crops. Maize, as the most widely grown staple crop in Africa, is particularly affected by frequent drought and drought-tolerant genetically modified (GM) crops are said to play an important role with respect to increased droughts on this continent. Current research on GM crops in South Africa and other African countries in research laboratories, in greenhouses or confined field trials, target drought-tolerant GM crops. This paper focuses on the first drought-tolerant GM maize (MON87460) authorised in South Africa in 2015 and discusses its relevance as a climate-smart measure for South Africa as the current biggest African GM crop producer. It looks into the promises of biotech companies regarding this drought-tolerant GM maize as well as its potential risks and draws lessons from the South African experience with GM crops for the rest of Africa.

The Qualidental and Gees judgments: Their impacts on the administration of applications to demolish buildings more than sixty years old

by | Jun 5, 2020 | SAJELP, SAJELP 2018

The Qualidental and Gees judgments: Their impacts on the administration of applications to demolish buildings more than sixty years old

Authors Stephen Townsend

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 155 – 174

Abstract

The National Heritage Resources Act protects heritage resources through two mechanisms, ‘formal’ and ‘general’ protections. One of the general protections enables the ‘screening’ of the heritage worthiness of structures more than sixty years old before authorisation to demolish is granted by the relevant provincial heritage resources authority (PHRA). In two cases, the Qualidental and Gees cases in 2007 and 2016 respectively, the Supreme Court of Appeal (SCA) confirmed the authority of PHRAs to impose conditions in order to protect abutting and nearby heritage resources when approving demolitions. Taking these two judgments into account, Gees in particular, this paper explores the consequences on future approvals of demolitions of structures more than sixty years old and suggests the necessary tempering of conditions in light of the Property, Just Administrative Action and Limitation of Rights clauses of the Constitution, and, importantly, in light of the test devised by the Constitutional Court in the FNB case.

Energy efficiency: The progress of policy, legislation, and the role of the courts in South Africa

by | Jun 5, 2020 | SAJELP, SAJELP 2018

Energy efficiency: The progress of policy, legislation, and the role of the courts in South Africa

Authors Willemien du Plessis

ISSN: 2616-8499
Affiliations: 
Source: South African Journal of Environmental Law and Policy 2018, p. 175 – 203

Abstract

Energy efficiency measures reduces energy intensity and lead to energy savings. It is seen as one of the ways in which to address the reliance on coal-based energy and its negative consequences. South Africa has various policies and laws that refer to energy efficiency. The Draft Post-2015 National Energy Efficiency Strategy sets energy efficiency targets for the public, private and transport sectors. The National Energy Regulator of South Africa (NERSA) is mandated to approve electricity tariffs and prices, amongst others. These tariffs have to be approved in line with the Multi-Year Price Determination (MYPD) Methodology, which also refers to energy efficiency. In a 2016 Gauteng High Court decision the court referred to the fact that Eskom encouraged its customers to use less energy, while the Supreme Court of Appeal did not refer to either energy savings or energy efficiency. The aim of this note is to discuss energy efficiency in light of the progress of policy and legislation and to indicate a possible role for the courts in this regard.

Fiction? A dialectical scrutiny of the appellate competence of the African court on human and peoples’ rights

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Fiction? A dialectical scrutiny of the appellate competence of the african court on human and peoples’ rights

Authors Sègnonna Horace Adjolohoun

ISSN: 2521-2605
Affiliations: BA, LLB (Benin); LLM, LLD (Pretoria). Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law (University of Pretoria, Central European University, Université Gaston Berger); Principal Legal Officer, African Court on Human and Peoples’ Rights

Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 1 – 31

Abstract

It is established case-law of the African Court on Human and Peoples’ Rights that it does not assume appellate jurisdiction over national courts. In several decisions rendered since its inception, the Court has consistently held that, when it examines cases of alleged violations of rights, it merely acts as an international court of first and final instance in vetting the conformity of domestic law and the conduct of municipal organs with international law to which the state concerned is a party. An overview of its jurisprudence however reveals a consistent challenge to the Court’s jurisdiction over cases that Respondent States argue had or should have been settled by domestic courts. The objections raised in related cases have led to a confrontational interaction between the Court and the states involved. On an increasing number of occasions, the ‘interaction crisis’ resulted in a political challenge to the very mandate of the Court and withdrawals or threats to retract from acceptance to its jurisdiction over sovereignty of the state and the integrity of domestic courts. Considering their submissions in respect of this issue, objections raised by Respondent States are genuine and therefore require principled reflections that the limited scope of the Court’s reasoning in individual cases or responses from its Registry do not and have not so far provided. In any event, the dialogue appears to have stalled as one of misunderstanding on the part of states and dilemmas for the Court. In this paper, I attempt to take up Sextus Empiricus’ role in assessing the veracity of both answers to the question whether the African Court exercises an appellate jurisdiction over courts of the Respondent States.

An evaluation of the regulatory framework for environmental management in the Nigerian petroleum industry

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

An evaluation of the regulatory framework for environmental management in the Nigerian petroleum industry

Authors Opeyemi Omotuyi and Ada Ordor

ISSN: 2521-2605
Affiliations: LLM University of Cape Town. Lecturer, Faculty of Law, Adekunle Ajasin University, Akungba Akoko, Ondo State, Nigeria; Associate Professor, Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 32 – 55

Abstract

Environmental management is crucial to the sustainability of any industry and, in particular, the petroleum industry which carries out activities that degrade the environment. In Nigeria where the economy is heavily dependent on crude oil, the subject of environmental management is even more pertinent. This paper evaluates the framework for environmental management in the Nigerian petroleum industry in light of internationally acceptable standards of corporate environmental management. In so doing, the paper makes relevant recommendations in line with international and industry-related best practices and guidelines.

Safeguards for public-private partnership assets in Nigeria: lessons from South Africa

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Safeguards for public-private partnership assets in Nigeria: lessons from South Africa

Authors Augustine Arimoro

ISSN: 2521-2605
Affiliations: LLB Hons (Maiduguri) LLM (Derby, UK) PhD, Associate Lecturer in Law, St Mary’s University Twickenham, London, United Kingdom
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 56 – 79

Abstract

Countries around the world are adopting the public-private partnership model of procurement in order to bridge infrastructure gaps and to tap from private sector capital and expertise. Given the involvement of private sector funding in publicprivate partnership arrangements, the safety of investors’ assets is fundamental in order to attract both domestic and foreign investors to the public infrastructure market. This article examines the framework for the administration of the publicprivate partnership model in Nigeria with a view to determining how the law protects investors’ assets. The framework in South Africa is also examined for comparative insight. The central argument in the article is that a reliable framework that aims to ensure successful completion and management of projects in Nigeria can be achieved by taking a cue from the South African model. The article concludes with recommendations.

Expanding the scope of ‘appropriate measures’: do traditional institutions play a role in facilitating the protection of witnesses of trafficking in persons?

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Expanding the scope of ‘appropriate measures’: do traditional institutions play a role in facilitating the protection of witnesses of trafficking in persons?

Authors Suzzie Onyeka Oyakhire

ISSN: 2521-2605
Affiliations: LL.B, LL.M: Doctoral Candidate, Faculty of Law, UCT and Lecturer, Faculty of Law, University of Benin, Benin City Nigeria
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 80 – 105

Abstract

This paper studies the legal instruments designed to protect the victims and witnesses of human trafficking, drawing on empirical studies of the effectiveness of such measures. It argues that a combination of a statute-backed witness protection scheme and the application of indigenous practices by traditional rulers is more effective than statute alone to protect witnesses of human trafficking in Nigeria particularly from psychological threats and intimidation. The paper highlights the unsuccessful attempts by law enforcement authorities to investigate and prosecute traffickers because of the unwillingness of victim-witnesses to testify against their traffickers arising from the fear of repercussion from juju oaths administered to them by juju priests in Nigeria aimed at instilling secrecy. Despite the existence of conventional protective measures, victim-witnesses refuse to cooperate so as not to incur the wrath of the oath. This paper illustrates further that conventional criminal justice mechanisms are ill-suited to effectively curb this challenge, resulting in traffickers evading criminal justice sanctions. The viability of the recent interventions by the Oba of the Benin Kingdom to counter the effects of these oaths through a proclamation placing curses on human traffickers and culpable juju priests, is thus considered in this article as an alternative protective mechanism.