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Chapter 11 - Environmental Law

The basics of environmental law

Parts of this chapter have been substantially adapted from Environmental Law in South Africa by Prof. Jan Glazewski.
Certain information has also been taken from Environmental Laws of South Africa by P. W. G. Henderson.

The Constitution says that everyone has the right to a safe and healthy environment. What is the environment? It is a very broad concept and is generally understood to mean the surroundings which we live in, which include things such as land, water and atmosphere of the earth; plants and animals, the relationships between these natural resources and animals, and the conditions that influence people’s health and well-being.

Why do we need to protect the environment?

The quality of our environment affects all of us no matter where we live. When people abuse the environment, this affects us all. If water is polluted, if the air is full of smoke and chemicals, if food contains poisons, people (and plants and animals) get sick. Many of the natural resources which we use every day, such as water, wood, minerals and fish, will soon run out if we do not limit the rate at which we use them. All people also have a responsibility to protect and use the environment in a way that will protect it for ourselves, our children, and our grandchildren.

Many people believe that human needs are more important than the environment. They say that our major aim must be creating economic growth and jobs, and that the green (environmental) agenda must take second place. Some people feel hurt or insulted when others show concern over endangered species like rhinos when children do not have enough to eat.

But, the environment is really the whole planet on which we live. Everything (winds, trees, animals, insects, people, etc) forms part of the living system of earth. Because the earth has been so badly exploited and not protected this has created changes in weather patterns, there are more droughts and more floods, good farm land is turning into desert, the temperature is rising and most important, the ozone layer that should protect us from the dangerous rays of the sun has been damaged and does not work as effectively as it did before. All this impacts on how people live and it is the reason why people now talk about the term sustainable development.

What is sustainable development?

Sustainable development refers to development that can continue on an ongoing basis because it does not do irreversible harm to the environment. Development like this should balance social, economic and environmental concerns. This is not easy because these three concerns often compete with each other. For example, a sustainable forestry industry should allow a certain number of trees to be cut down and be used by people, but at the same time make sure that enough trees are left to be cut down and used in the future. This could be achieved by cutting down some of the trees and also planting new trees to replace those harvested, so that there will be trees in the years ahead. It is clear that sustainable development is an international issue. South Africa has signed and ratified certain important international conventions that aim to protect the environment.

Which laws are relevant to the environment?

There are three categories of law in South Africa that affect the relationship of people with the environment:

• the Constitution which protects our right to enjoy and have access to the environment.
• the Common Law
  • regulates how people interact with each other in the context of the environment.
  • protects our use and enjoyment of our own property, for example, but limits it in certain ways so that this use and enjoyment does not interfere with the rights of other people.
• national, provincial and municipal laws
  • some laws are like a framework because they apply across all aspects of the environment.
  • other laws are sectoral in nature as they only apply to certain parts of the environment such as water, fish, plants, trees, minerals etc.

It is very important to understand that the different areas of law dealt with in this chapter do not work in isolation from each other. In other words, all of the law that we talk about works together. So, the Constitution, the common law and legislation work together like a web of rules that you can use to find out what rights people have and how best to protect those rights. For example, if a community is experiencing problems with smoke pollution, you may find that they are protected by the Constitution, the common law and by legislation all at the same time.

These three categories of law are discussed in more detail below. At the end of this chapter we will consider which strategies individuals and communities can use to protect their environmental rights.