LEG2601 - Legal Aspects Of Environmental Management-ASSIGNMENT 1 & 2 2022.

LEG2601 - Legal Aspects Of Environmental Management-ASSIGNMENT 1 & 2 2022.1.1)Public Law Relationship - Public law is law governing the relationship between individuals (such as citizens and companies) and the state. - It is an unequal (↕ vertical) relationship, because one of the parties holds on authoritative position - Public law aims to protect the public interest - Public law comprises of constitutional law, administrative law, tax law and criminal law, as well as all procedural law. Private Law Relationship - Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligation (as it is called in civil legal systems) - It is a horizontal (↔ equal) relationship, meaning that the parties are on equal footing - The persons (also called “parties”) act in their own (private) capacity to further their own interests 1.2) Four Sources of South African Law - The constitution – the supreme law of the country - Legislation (acts of the national and provincial legislatures, governmental regulations) - Common law - International law 1.3)The term ‘heritage resource” refers to any place or object of cultural significance. The cultural Heritage Impact Assessment must be undertaken if a development will have an impact on a heritage resource. In the context of developments which threaten heritage resources, the Act provides for a National Heritage Resources Authority and for Provincial Heritage Resources Authorities. These authorities are responsible for protecting and managing certain categories of heritage resources and they are the authorities that must make the decision on whether to permit the development. A person who wishes to undertake certain types of development that will an impact on a heritage resource must include an assessment of the impact on the heritage resource in question in his or her application. 1.4)The environment is held in public trust for the people, - The beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage - Kidd (Environmental law 2008 act 11) states that the public-trust doctrine adopted in South Africa resembles “trusteeship” rather than public trust - Public trust refers to a state-held resource which must be held for the benefit of the general public, referring to the free use of, or access to, such a resource by the general public - The principle of trusteeship, in contrast, entails that the trustee should protect the environment on behalf of future generations. 1.5)“Well-being” is regarded in the wider sense which includes spiritual or psychological characteristics and an individuals need to be able to connect with nature. Question 2 2.1) • To be performed “lawfully” the action must comply with all the requirements of the law. This means that the relevant prescriptions of the constitution, other legislation and case law (e.g., the sources of law) must be complied with. Any administrator must act within the powers conferred on him or her by the empowering legislation (the legislation that confers the powers). In the enabling legislation we find instructions relating to the scope and content or nature of administrative power. If any administrator exceeds the statutory powers laid down in the enabling legislation, we say that the action is ultra vires (which is unlawful). • A “reasonable” administrative action is a decision based on the consideration of all the relevant and objective facts and circumstances. A reasonable decision is therefore a decision based on reason and not based on, for e.g., subjective opinion. A reasonable decision is a suitable and necessary decision in the circumstances and reflects that the administrator has weighed up the advantages and disadvantages before reaching the decision. In terms of PAJA, an unreasonable administrative action is so unreasonable that no reasonable person could have so exercised the power or performed the function. • The obligation to comply with “fair procedures” requires that both parties involved in the case have the opportunity to present their side of the story to the presiding officer, and that the presiding officer must be objective and impartial when making a decision on the matter. These are known as the rules of natural justice, which has been included in PAJA. 2.2) Besides their powers, which include: • Questioning suspects • Issuing written notices where people refuse to answer questions • Inspecting and copying any relevant book or document, as well as taking photographs and samples relevant to any investigation, EMIs also have the following specific powers: • May issue a compliance notice if a person has not complied with a term or condition of a permit, authorisation, license or the provisions of environmental legislation. • May give an offender an admission of guilt fine instead of being tried by a court for the offense. • Has the power to seize any item as well as to stop, enter and search vehicles, vessels and aircraft. • Can carry out routine inspections on buildings, land or premises to ascertain that there is compliance with the legislation or any permit or authorisation issues. EMIs are organs of state and perform administrative action when, for example, issuing a compliance notice. Their actions are therefore subject to the scrutiny of senior officials who will check that they exercise their powers as set out in the Constitution (s 33) and the relevant legislation. Question 3 3.1) Before someone can ask a court to review an administrative action, there is an important rule in the PAJA that must be complied with, the rule of exhaustion of internal remedies. This means that, where the law sets out procedures allowing someone to review or appeal a decision of the administration, there must be used up before an affected person can approach a court. Internal remedies are ways of correcting, reviewing or appealing administrative decisions using the administration itself • Administrative officials dealing with these problems are well able, and have the expertise needed to deal with the problems on the spot. • The matter may therefore be dealt with expediently and cheaply, without the long delays that are encounted in court cases. Court cases, on the other hand, are expensive and timeconsuming, and judicial officers often have less hands-on experience of technical environmental problems than officers working in this field. • Although administrative control is not the same as the judicial control exercised by the courts, the administrative controlling bodies and officials have powers and functions to evaluate and resolve administrative disputes. 3.2) Criminal sanctions are widely used to enforce environmental rules and to control actions that contravene the law. Criminal sanctions are provided for in legislation and are also referred to as criminal penalties or measures. These sanctions are very important and are used extensively in environmental disputes where specific legislative provisions have been contravened. The major purposes of criminal sanctions are: • Deterrence • Incapacitation • Rehabilitation • Retribution • Restitution