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Chapter 11 - Environmental Law
The Constitution contains a number of sections that are relevant to the environment.
The environmental right - Section 24
Everyone has the right to:
- an environment which is not harmful to their health or well-being
- have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that:
- prevent pollution and ecological degradation
- promote conservation
- secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.
Section 24 therefore places a duty on all spheres of government to take reasonable steps, including to make laws, prevent pollution, promote conservation and ensure sustainable development.
What do the words ‘health and well-being’ mean?
The meaning of these words is not entirely clear so it will be up to the courts to decide on their exact meaning in the future. It seems that "health and well-being" include the following:
- Protection from pollution in the air, water, food or soil. This includes protection from dangers in the workplace, and from less obvious dangers to health such as excessive noise.
- Protection of our well-being covers both physical and mental well-being. This would include protection from nuisances and invasions of privacy and dignity. The European Court of Human Rights recently ruled that a bad smell from a tannery that offended neighbouring residents was a violation of their right to privacy. In our law this would probably qualify as a violation of the right to well-being. The Eastern Cape High Court was required to consider a case in which the applicant argued that the production of hydrogen sulphide (which smells like rotten eggs) by a tannery, was causing pollution in the neighbouring area. The Court held that to be forced to work in an ‘environment of stench’ was contrary to one’s well-being. Therefore, we can say that something affects our well-being if it affects our ability to enjoy our life.
Who can you enforce your environmental rights against?
There has been much debate about the application of environmental rights. It is quite clear that these rights apply between the state and private persons. However, the question is whether the right applies between two private persons. It seems that the courts have accepted that environmental rights can apply between private persons.
See Section 8: Application of the Bill of Rights.
Other rights relevant to the environment
The Constitution recognises the general need to improve the quality of life of all persons. Certain constitutional rights can be used to support reasonable environmental demands. However, it should also be noted that there may be tension between the environmental right and other rights in the Bill of Rights. These include:
- The right to life (Section 11)
- The right to human dignity (Section 10)
- The right to privacy (Section 14)
- Certain socio-economic rights
- the right of access to adequate housing (Section 26);
- the right of access to sufficient food and water (Section 27);
- the right of access to health care services (Section 27);
- the rights of children to basic nutrition and shelter, and to be protected from maltreatment, neglect, abuse or degradation (Section 28).
See Section 26: Right of access to housing, Section 27: Right of access to health care, food, water and social security,
General rights relating to the environment
A community residing in an informal settlement is living with no running water, refuse removal and sanitation. The bucket toilet system is used, which is a constant health risk to the environment and community. Which rights are potentially affected in this case?
The lack of water or sanitation in the informal settlement could pose a threat to the health of the residents. The failure of the local authority to provide toilets, water, sanitation, adequate housing and refuse removal potentially violates a number of constitutional rights, including:
- the health of the residents
- the well-being of the residents
- the right of access to adequate housing
- the right of access to water
- the rights of the children to be protected from degradation
- the right to life, due to the potential for the outbreak of a disease like cholera
- the rights to privacy and dignity, due to the lack of toilets
What can the residents do?
Strategies the residents can take are suggested in: Ways to resolve environmental disputes.
The Constitution places a duty on all spheres of government to take reasonable steps, including making laws and policies, to provide access to basic health care, food and running water. If the residents felt that the government had not taken reasonable steps to provide access to water, sanitation and housing, they would be able to approach a court, which would be required to decide whether the steps taken by government to realise these rights were reasonable.
The Right to Equality - Section 9
The right to equality and non-discrimination is important for people working on environmental issues. An indirect form of discrimination was recognised in the United States of America where it was found that most hazardous or polluting industries are built in poor or black neighbourhoods. These areas then bear an unequal share of the environmental problems from these industries, as a result of their harmful effects on the health and safety of residents. This practice has been called environmental discrimination or environmental racism. Many decisions about the use of land taken in South Africa during apartheid can also be criticised as environmental discrimination.
The opposite of environmental discrimination can be called environmental justice. Environmental justice requires that:
- the benefits we derive from the environment are shared equally among all people,
- negative aspects, such as rubbish dumps or power stations, are shared amongst all communities.
A local municipality requires rubbish collection to take place only twice a month in a local township because the township is far from the main town centre. The wealthy neighbourhood, which is close to town, has rubbish collections once a week. This is a clear case of inequality on the part of the municipality.
The Right of Access to Information - section 32
Section 32 of the Constitution guarantees every person the right of access to any information held by the state and any information that is held by another person that is required for the protection of any rights. The right to information is important for environmental issues. Without access to the proper information people do not know what action is being planned or the procedures that will be followed. It is not possible to participate properly in public debates if the public does not have relevant information. For example, the public has the right to know in advance about possible plans for the building of a new railway line or factory in their neighbourhood and they have the right to inform decision-makers if they are against the building of these structures.
The Promotion of Access to Information Act (No 2 of 2000) (PAIA) was passed to give effect to section 32, and sets out detailed procedures which must be followed in order to obtain access to information.
People in your community own land next to the sea. They find out that a developer has applied to local government for permission to build a steel mill in the area in which they live. Although they have tried to get information about the proposed development from the developer they have not been successful. Members of the community are concerned that the development of the steel mill could cause pollution and other environmental problems. They need this information in order to participate fully and effectively in the public consultative process that is to follow.
A large factory is established next to your community. Many people get sick and you suspect that it is caused by fumes being emitted from the factory. The company refuses to tell the community what substances are being produced by the factory. People need this information in order to be able to lodge a complaint with the relevant authority.
The community can demand this information from the developer or factory as well as from any government department or local authority which has access to the relevant information. The best way to protect this right of access to information is to make an application to the court for an order telling the developer or factory to provide the community with the information that it needs.
Before a community takes any action it will have to establish that a constitutional right (such as the environmental right) has been infringed. Secondly, it will have to prove that it needs the information to protect this right. Thirdly, the community will need to comply with the procedures set out in PAIA. A number of environmental non-governmental organisations have relied on this right to obtain access to information, for example, concerning genetically modified organisms.
The Right to Just Administrative Action - Section 33
Administrative action refers to decisions made by the state and representatives of the state. Environmental conflicts often arise as a result of the incorrect or unfair use of administrative decision-making powers. In terms of section 33:
- everyone has the right to administrative action that is lawful, reasonable and procedurally fair - Section 33(1)
- everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for the decision - Section 33(2)
The Government has passed the Promotion of Administrative Justice Act (No 2 of 2000) (PAJA) which sets out what administrative action is, the actions that would amount to procedurally fair administrative action, the grounds on which administrative action can be challenged, the remedies available, the procedures that must be followed to obtain written reasons and the relief that a court can grant a person who is asking for the review of a decision.
See What are the requirements of lawfulness, procedural fairness and reasonableness?
Certain people in your community live in an informal settlement near the coast which is close to an expensive coastal holiday resort where people from the city own holiday houses. A chemical company has been granted permission by the local authority to set up a chemical production plant very close to the informal settlement.
It is likely that this chemical plant will harm the environment as well as the health of the people in the community. These people want to find out how the chemical company got permission to set up the production plant, and what other action the chemical company may be thinking of taking. They have formally requested the local authority to provide them with information about the new chemical production plant so that they can use the information to comment on whether they think the permission for the plant should have been granted or not. The local authority is a part of government. Therefore, any decision that it makes is an administrative decision.
What can the community members do?
Other rights that are potentially affected in this example include the right to equality if the nearby (wealthy) resort has not been negatively affected in the same way as the informal settlement, and the right of access to information because the community's request for information about the chemical production plant has been ignored.
- They can use PAJA to get written reasons from the local authority for its decision to allow the erection of the chemical production plant.
- They can use the PAJA to challenge the procedural fairness of the municipality’s decision as their rights are affected by the decision and they were not consulted prior to it being made.
- They can use the PAJA to challenge the reasonableness of the decision. Here the court would consider all of the surrounding circumstances to see whether the decision was suitable, necessary and proportionate.