Exploring the relationship between the environmental right in the South African Constitution and protection for the interests of animals
Authors David Bilchitz
Affiliations: Professor, Fundamental Rights and Constitutional Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 740 – 777
This article considers the relationship between the environmental right in the South African Constitution, 1996 and the protection of the interests of animals. The question is addressed through articulating two interpretive approaches to the terms ‘conservation’ and ‘sustainable use’. The ‘aggregative approach’ — which has been the dominant policy approach adopted by the legislature and executive — focuses on broad collective environmental goals such as the long-term survival of a species, the health of ecosystems, or conserving biodiversity. The ‘integrative’ approach, by contrast — which has recently been referenced with approval by the Constitutional Court — requires the adoption of an attitude of respect to the individuals that make up a species, an ecosystem or the components of biodiversity. The article makes several arguments as to why the integrative approach is preferable, and attempts to demonstrate that the aggregative approach is self-defeating in its own terms. The practical implications of the differences between these abstract approaches are illustrated by considering two recent controversies in interpreting environmental legislation. This article thus sets itself the ambitious purpose of connecting two sets of discourses that often talk past each other in developing the interpretation of the environmental right in the South African Constitution.