The silent right : environmental rights in the Constitution Court of South Africa

Abstract

Environmental rights are recognised in s 24 of the Constitution, but the Constitutional Court has not engaged with these in a meaningful manner in the last decade. Fuel Retailers, handed down in 2007, was the last case to engage s 24 fully. Although it used the concept of sustainable development to give content to the right, the case has been criticised for its economic focus and the lack of certainty in its approach. The resulting precedent may have been difficult to follow, creating a barrier for potential environmental cases in more recent years. However, a challenge prior to the interpretation of environmental rights in the court room is that environmental issues do not always make it to court. The three cases analysed in this piece reflect matters in which environmental rights were relevant, but neither argued by the parties nor raised by the Court. This may be attributed to the complexity of environmental matters, or to difficulties related to competing priorities and legal standing. More particularly, the challenges faced by the environment in getting to court are akin to the difficulties faced by children in having their rights vindicated-both must be represented by others. The three cases discussed in this article suggest that the Court has something of an environmental blindspot. This can be likened to the gender blindspots that have existed in past cases, and arguably still exist. Having made the case for an environmental blindspot, this article considers an array of tools that might address the problem. Internationally, independent environmental agencies and specialised environmental courts have been created, but these may not be the best fit for the South African context. Instead, this article suggests that existing legal tools may be used for the realisation of s 24's environmental rights. The Constitutional Court may make use of its broad powers to pick up on environmental issues even where these have not been explicitly identified by the parties. While this may be contrary to established procedure, the Constitutional Court does adopt a flexible approach when it believes that specific rights or provisions in the Constitution are essential to ventilate and to resolve the issues raised in a matter. This flexibility may allow the court to bypass the challenges facing s 24, enabling the development of this important constitutional right. Finally, this article suggests a proactive approach to s 24, formalising an upper guardian for the environment to accelerate the development of the right's content.

Market shared liability: an alternative to proportionally impose guilt in civil lawsuits against corporations causing land degradation

“…One of the efforts to ensure that the land remains fertile is by handling, both preventively and repressively against land degradation (Hajati et al, 2023). Regulations related to handling land degradation have received various kinds of arrangements both at the international level and nationally in each country (Kroger, 2019). At the international level, land degradation has been regulated in the SDGs Point 15.3 and the UNCCD by the UN, and in Southeast Asia, there is the ASEAN Agreement on Transboundary Haze Pollution (AATHP) by the Association of South East Asian Nations (ASEAN).…”