LEG2601 SUMMARY NOTES.

LEG2601 SUMMARY NOTES. Legal Aspects Of Environmental Management. Learning Theme 1 – What is the law? 1.1 Introduction - The law is the basis of any orderly society - Moral and ethical rules that govern human behaviour are not usually legal rules. - Biblical/ religious commandments can constitute a legal norm e.g. thou shall not kill – murder is a crime and is the intentional act of killing a person without jurisdiction - Ethics: aka individual morality, comprise those guidelines that people may set for themselves and which they then regard as binding in their conscience - Community mores: aka positive morality, are the norms accepted as binding by a certain community, 1.2 defining “Law” - The law can be defined as the only body of rules governing human conduct that is recognised as binding by the state and if necessary enforced. ( the SA legal system & it’s background, 1968) - Basic Characteristics: o Society – must accept and obey these norms and rules is a body of norms and riles that governs private and public action and interaction o Must create order and legal security in society o Is applied and enforced by the institution of the state e.g. courts 1.2.1 The law is a body of norms and values that must be accepted by the society as its legal system - SA society must have confidence in the law and must approve and accept the body of rules, norms and values as the law of the country - The law must reflect the shared values, norms, and rules of the majority of society, but it must also be able to evolve with a developing society - The constitution is a “value-laden” document which is founded on democratic values of o Human dignity o The achievement of equality o And the advancement of human rights and freedoms - Courts have to interpret all law within the context of the constitution and give effect to these underlying values 1.2.2 The Law Governs relationships - Rules and norms facilitate action and interaction between different people (legal subjects) - The law determines how legal subjects should related to one another in a legal scenario 1.2.2.1 Legal subjects - A legal subject is anyone who is subject to the norms of the law i.e. persons, bearers or rights and duties - Natural or juristic person; o Natural persons: human beings e.g. private property owners, rate payers etc. o Juristic persons: (legal persons) are not natural persons but abstract entities.  The law gives them certain rights to act as a “person” in legal relationships  Have the capacity to perform certain legal actions e.g. buying and selling, suing, acting as a party in a court case - Other institutions and organizations that are not government institutions/ NGO’s and associations/ clubs/ groups are recognised as legal persons in their different legal relationship with other legal subjects. They have entities who act as agents/ spokespersons. - A person (natural/ juristic) is a legal subject and is therefore a bearer of rights and obligations (duties) - A juristic person does not have ALL the rights and duties of a natural person but the legal capacity to perform its functions in terms of its legal relationship and be held accountable for its conduct. 1.2.2.2 Legal Relationships - Legal relationships may exist between natural and juristic persons e.g. private company and private person - A legal relationship may also exist between legal/ natural persons and the state e.g. government 1.2.2.2.1 Private Law relationships - Private law is a branch of our law which has its origins in common law (unwritten law) - Usually governed by sources of common law - Between Natural or juristic persons – EQUAL relationship (horizontal). - Represented by: - Relationship characteristics: o Horizontal relationship-: equal relationship, both parties on equal footing o Based on a voluntary agreement between subjects o Persons are also called parties and act in their own (private) capacity to further their own interests Natural/ juristic person Natural/ juristic person S - The Marketplace to Buy and Sell your Study Material Downloaded by: chlosicard | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material LEG2601 2 - Established in the private law sphere without any interference from Government/ state – but The Constitution does influence the same, the states Bill of Rights protects all persons against abuse by other private persons 1.2.2.2.1 Public Law relationships - Public law is a branch which governs the public law relationship between legal subjects. - More complex than private law - ALWAYS UNEQUAL relationship (vertical) - One party always holds an authoritative position - Due to the unequal relationship, one party may be coerced by the authority - The legal subject vested with authority is called -: “organ of state” o Organ of state (Constitution)-:  “any department of state or administration in the national, provincial or local sphere of government”  “any other functionary or institution (i) Exercising a power of performs a function in terms of the Constitution or a provincial constitution; or (ii) Exercising a public power or performing a public function in terms of any legislation” - This does not include a court or judicial officer (magistrate/ judge) - Difficult to determine what actually is an organ of state. - A public power is obliged to work in an open, participative and accountable manner in the public interest - The rights of a person may be limited – this needs to be evaluated in terms of the constitution 1.2.3 The Law must create legal order and legal security in society - The law must create legal order and legal security by providing a system of legal rules - Society must know what is illegal and legal & how to remedy a wrong - When a law is ignored or disobeyed, the person accused of breaking the rules may be charged and punished if it is a criminal offence. o The law prescribes specific forms of punishment for specific offences or crimes and thus restores the legal balance and maintains harmony in the community or society. - Transgressing the law may give rise to a civil claim e.g. owning property- right of ownership- enforceable against other people 1.2.4 The law is applied and enforced by institutions of the state - The law is applied and enforced by institutions of the state e.g. courts & government bodies (Dept.) - Procedures for enforcement are contained in the Constitution & legislation - The law is applied and enforced by bodies or officials within the various government administrations – provincial/ national environmental depts. Local authorities etc. & specific bodies outside the dept. - Anyone who is involved in a legal dispute may take their case to court to obtain a judicial decision - The courts (judiciary) administer justice – interpret & apply the law in order to resolve a specific dispute o Private, public or criminal law are seen in court o Criminal offence – the alleged offender: the accused, the prosecutor presents the state’s case against the accused. 1.3 Classification of SA Law - Law relating to the environment is a cross-divisional field of law - Environmental law incorporates norms and principles of public, private and international law Organ of state Subservient party (Natural / Juristic person) S - The Marketplace to Buy and Sell your Study Material Downloaded by: chlosicard | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material 1.3.1 The distinction between international & national law International Law Responsible for controlling relations between various states Deals with the protection and management of the environment & control of pollution on a global scale National Law The law that applies in that particular or for that State only. The sum total of the rules of law that apply in that state NEMA is the national legislation that provides the framework for managing the environment in SA Substantive Law The part which determines what the rules or law contain i.e. their substance Divided into private and public law & divided thereafter into further sections Public law Contains the rules that govern relations between: The state and its subjects The state and its organs of state Various organs of state State always has position of authority Constitutional Law Determines What the state is How the state is structured Various relations between organs of state Controls the powers of the various organs of state Administrative Law Determines how the state functions and it’s administration Procedures to be followed Organs of state must act reasonably, lawfully & procedurally fair Must give reasons for their decisions Criminal Law Determines what acts constitute and the penalties that can be imposed Private Law Contains the rules that govern relations between people Regulates rights and duties of people in respect of each other The state has no position of authority Law of persons Determines who is a legal subject in the eyes of the law i.e. who has rights and obligations e.g. children of 5 cannot conclude an enforceable contract. Family Law Rules of law related to engagement, marriage, marital property, divorce and parent-child relationship Controls family relationship. Patrimonial Law Regulates the relationship between people and their (financial) means E.g. personal estates The Law of Property Controls the relationship between people and things/ property “Things”: lifeless/ nonhuman e.g. land, cars, farms, animals Law of succession Determines what happens to a person’s property after the person’s death Sets out requirements of a valid will Law of immaterial property Immaterial property – property createhuman mind/ intellect e.g. inventionswritten works etc. Contains the rules of law that relate property pPDS - The Marketplace to Buy and Sell your Study Material Downloaded by: chlosicard | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material Learning Theme 2 – Finding the law and its origins 2.1 2.1.1 Development of SA Law Introduction - The history of a country has a major influence on the development of its legal system - SA law is historically derived from Roman, Roman-Dutch, English and Indigenous law - The SA Constitution’s transformation also plays a major role in the development 2.1.2 Roman Law - The Roman law was applied during the 1st Century BC - Justinian kept the Roman law alive by making a compilation of all law – approx. 12 Century AD - Law spread through Europe due to studies by medical universities - The spread of law to the Netherlands gave rise to “Roman-Dutch” law – different from SA law - Environmental: Roman law principle: a person must use his/ her property in such a way as not to harm others 2.1.3 Roman-Dutch Law - 1652 Jan Van Riebeeck came from the Netherlands to est. a refreshment station in the Cape. - Settlers were schooled in Roman-Dutch Law and this became the law of the Cape Settlement. - Over time this law became part of SA’s common law. - Environmental: was managed by this type of law – placates were issued to protect land, gardens and trees, simple measures were put in place to protect land and environment 2.1.4 English Law - Around 1800’s the British occupied and colonised certain territories and around all of SA - Brought with them their own legal system – English Law - British never abolished Roman-Dutch law however English law influenced the SA system because English became the official language and legal practitioners/ judges received their training in England - Environmental: previous environmental courts and cases were assigned to the magistrates courts for judgement. 2.1.5 Indigenous Law (Customary Law) - The indigenous African’s were living in SA long before the Dutch settlers arrived - Indigenous people lived according to their own laws and customs – African Customary law - African Customary law – an unwritten system passed through generations - Only recognised by colonial authorities during second half of the 19 th Century - and only as applicable to black people - KZN – much of the indigenous law has been written up in code and is formally recognised - Indigenous law is based on community - African Customary law regulates individual relationships between members of the family rather than relationships between indiv. And state - Environmental: important rule was open access to grazing land and land containing medicinal plants. 2.1.6 Constitutional Transformation - Roman, Roman-Dutch, English and Indigenous law are referred to as “Common Law” - This refers to the part of SA which is not incorporated in statutory law (written law) - The rules by which a country are governed are contained in the constitution - SA’s previous constitutions were not democratic as they excluded the black majority from voting o 1983 – Indian and coloured populations were included in the tricameral parliamentary system (a parliament consisting of 3 houses, one for each population group) o This meant only citizens who could vote determined the rules of the country o This resulted in discriminatory statutory laws (legislation) o As Parliament was not supreme, these unfair/discriminatory laws could not be challenged in the courts as they did not have authority to pronounce on such legislation o 1970&1980’s escalating violence and political revolt pressurised the minority government into participating in a negotiation process for democratic change in SA o The political and constitutional multiparty negotiations paved the way for the introduction of a new democratic constitutional dispensation which culminated in the adoption of the Constitution of the Republic of South Africa of 1996 2.2 2.2.1 Sources of the Law Legislation - Environmental concerns are relatively modern concerns & were not important to the traditional legal system of old - Most sources of environmental management are relatively modern – written law - The Constitution and legislation are the most important sources of environmental management S - The Marketplace to Buy and Sell your Study Material Downloaded by: chlosicard | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material LEG2601 1 - The Constitution defines the national, provincial and local spheres of government & their powers - Legislation is made by legislative authorities (Law making bodies) e.g. parliament/parliamentary legislatures/ Municipal Councils - We distinguish between these three 2.2.2.1 The Constitution - The Constitution forms the most important component of the country’s legal system and expresses the values and sentiments of the SA society - The most authoritative source of SA law - Sets out its supremacy & legal rules defining the institutions of government & the legislative/ executive / judicial branches of government. 2.2.2.1.1 The Supremacy of the constitution - The 1996 Constitution has created a new legal order for SA & enshrined its founding principles – dignity, equality & freedom - The Constitution is the supreme (highest) law of SA - The supremacy of the Constitution has ended Parliaments supremacy and ALL forms of law, Parliament and all organs of State are subordinate to the Constitution - ALL law MUST BE consistent with the Constitution - Any law/ action not in accordance with the Constitution is seen as invalid or unconstitutional - The Constitution sets out the standards that have to be used to protect the individual against any abuse of state power. GOVERNMENT GAZETTE, 18 DECEMBER 1996 NO CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 ACT NO. 108, 1997 To introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto Preamble CHAPTER 1 - Founding Provisions CHAPTER 2 - Bill of Rights CHAPTER 3 -Co-Operative Government CHAPTER 4 - Parliament CHAPTER 5 - The President and National Executive CHAPTER 6 - Provinces CHAPTER 7 - Local Government CHAPTER 8 -- Courts and Administrative Justice CHAPTER 9 - State Institutions Supporting Constitutional Democracy CHAPTER 10 - - Public Administration CHAPTER 11 - Security Services CHAPTER 12 - Traditional Leaders CHAPTER 13 - Finance CHAPTER 14 - General Provisions SCHEDULE 1 - National Flag SCHEDULE 2 - Oaths and Solemn Affirmations SCHEDULE 3- Election Procedures SCHEDULE 4 - Functional Areas of Concurrent National and Provincial Legislative Competence SCHEDULE 5 - Functional Areas of Exclusive Provincial Legislative Competence SCHEDULE 6 - Transitional Arrangements SCHEDULE 7 - Laws Repealed Preamble We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to— Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. S - The Marketplace to Buy and Sell your Study Material Downloaded by: chlosicard | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material LEG2601 2 May God protect our people. Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika. 2.2.2.2. Parliamentary Legislation - National legislation is adopted by parliament. - Parliament makes laws on national matters such as defence, national health & national env. Management - Nation legislation deals with matters of national importance – applies throughout the country - Contains overarching and general rules that apply to all spheres of government - NB: National Environmental Act 107 of 1998 (NEMA) which establishes a national and integrated environmental management system for SA and envisages the coordination of all the different environmental administrations . NEMA Preamble & purpose Purpose. To provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote cooperative governance and procedures for co-ordinating environmental functions exercised by organs of state; to provide for certain aspects of the administration and enforcement of other environmental management laws; and to provide for matters connected therewith. Preamble. WHEREAS many inhabitants of South Africa live in an environment that is harmful to their health and well-being. - everyone has the right to an environment that is not harmful to his or her health or wellbeing; - the State must respect, protect, promote and fulfil the social, economic and environmental rights of everyone and strive to meet the basic needs of previously disadvantaged communities; - inequality in the distribution of wealth and resources, and the resultant poverty, are among the important causes as well as the results of environmentally harmful practices; - sustainable development requires the integration of social, economic and environmental factors in the planning, implementation and evaluation of decisions to ensure that development serves present and future generations; - everyone has the right to 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; and - secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development; - the environment is a functional area of concurrent national and provincial legislative competence, and all spheres of government and all organs of state must co- operate with, consult and support one another; - AND WHEREAS it is desirable - that the law develops a framework for integrating good environmental management into all development activities; - that the law should promote certainty with regard to decision-making by organs of state on matters affecting the environment; - that the law should establish principles guiding the exercise of functions affecting the environment; - that the law should ensure that organs of state maintain the principles guiding the exercise of functions affecting the environment; - that the law should establish procedures and institutions to facilitate and promote cooperative government and inter-governmental relations; - that the law should establish procedures and institutions to facilitate and promote public participation in environmental governance; - that the law should be enforced by the State and that the law should facilitate the enforcement of environmental laws by civil society. Specific national environmental legislation, listed in NEMA:  Environment Conservation Act 73 of 1989 (ECA)  National Water Act 36 of 1998  National Environmental Management: Protected Areas Act 57 of 2003 (NEM: PAA).  National Environmental Management: Biodiversity Act 10 of 2004 (NEM: BA)  National Environmental Management: Air Quality Act 39 of 2004 (NEM: AQA)  National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEM:ICMA)  National Environmental Management: Waste Act 59 of 2008 (NEM: WA) World Heritage Convention Act 49 of 1999 The NEM: BA Provides for the management and conservation of SA’s biodiversity within the framework of NEMA; the protection of species and ecosystems that warrant national protection; the sustainable use of indigenous biological resources; and the establishment and functions of a SA National Biodiversity Inst. The NEM: PAA Provides for the protection and conservation of ecologically viable areas representative of SA’s biological diversity and its natural land and seascapes; the est. of a national register of all national, provincial and local protected areas; the management of those areas; Part A of schedule 4 of the Constitution outlines the topics (functional areas) of concurrent national and provincial legislative power. This means that both the national and provincial legislatures have the power to legislate on matters set down in part A of schedule 4. These functions are, inter alia, the administration of indigenous forests, the environment, nature conservation (excluding national parks, national botanical gardens and marine resources), pollution control, regional planning and development, and soil conservation. S - The Marketplace to Buy and Sell your Study Material Downloaded by: chlosicard | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material LEG2601 3 intergovernmental cooperation and public consultation in matters concerning protected areas; and the continued existence, governance and functions of SA parks. - Types of areas differentiated between; o Special reserves, national parks, nature reserves (including wilderness areas_ and protected environments o World heritage sites o Marine protected areas o Specially protected forest areas, forest nature reserves and forest wilderness as declared in terms of the National Forestry Act 84 of 1998 o Mountain catchment areas declared in terms of the Mountain Catchment Areas Act 63 of 1970 o National Parks Local Gov. Acts – re: env. issues  Municipal Demarcation Act 27 of 1998  Municipal Structures Act 117 of 1998  Municipal Systems Act 32 of 2000 Relevant legislation  regulating  Mineral and Petroleum Resources Development Act 28 of 2002 2.2.2.3 Provincial Legislation - Provincial Legislation is adopted by each of the 9 provinces - Applies only to the province in which it is promulgated - In some matters, provinces have exclusive legislative powers and can therefore make laws on that matter – others have shared legislative powers with Parliament - This may cause conflicts (Provincial vs. Constitution) but section 44(2) of the Constitution determines that parliamentary legislation takes precedence over provincial legislation when; o Maintaining national security o Maintaining economic unity o Maintaining essential national standards o Establishing minimum standards for the rendering of services o Preventing a province from acting unreasonably to the detriment of another province or the country as a whole Provincial env. Legislation (Pre1994)  Natal Nature Conservation Ordinance 15 of 1974  Orange Free State Nature Conservation Ordinance 8 of 1969  Cape Nature and Environmental Conservation Ordinance 19 of 1974 (W.Cape, E. Cape, N. Cape & parts of NW Province)  Transvaal Nature Conservation Ordinance 12 of 1983  KwaZulu Nature Conservation Act 29 of 1992 New provincial Legislation post 1994 Eastern Cape The Provincial Parks Board Act (Eastern Cape) 12 of 2003  Operational: 31 December 2003  Provides, inter alia, for the management of biodiversity in provincial parks. The Eastern Cape Parks and Tourism Agency Act 2 of 2010  Operational: 1 July 2010  The environmental angle of this Act is found in the establishment of the Eastern Cape Biodiversity Conservation and Development Fund as well as the appointment of environmental management inspectors, inspectors and compliance officers. KwaZulu-Natal KwaZulu-Natal Nature Conservation Management Act 9 of 1997  This Act provides for institutional structures for nature conservation in KwaZulu-Natal and establishes control and monitoring bodies and mechanisms to achieve the purpose of the Act. Limpopo Limpopo Environmental Management Act 7 of 2003 c  Operational: 1 May 2004 Part A of Schedule 4 of the Constitution outlines the topics (functional areas) of concurrent national and provincial legislative power. This means that both the national and provincial legislatures have the power to legislate on matters set down in Part A of Schedule 4. These functions are, inter alia, the administration of indigenous forests, the environment, nature conservation (excluding national parks, national botanical gardens and marine resources), pollution control, regional planning and development, and soil conservation. Part A of Schedule 5 lists the functional areas in respect of which provinces have exclusive legislative competence. These functions are, inter alia, provincial planning.