leg2601 legal aspects of environmental management summary_1.

leg2601 legal aspects of environmental management summary_1.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. 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 4  The Act deals with a number of matters, inter alia, “protected areas” (s 3); “the Convention on International Trade in Endangered Species of Wild Fauna and Flora” (s 9); “environmental pollution” (s 13); and the officials dealing with all these matters (“environmental compliance officers”) (s 14). Northern Cape Northern Cape Planning and Development Act 7 of 1998  Operational: 1 June 2000  Stipulates that regulations or guidelines may be made on measures aimed at protecting the environment, including environmentally sustainable application procedures (see s 79(1) (b) (i)). Northern Cape Nature Conservation Act 9 of 2009  Operational: Not yet  Provides for the sustainable use of wild animals, aquatic biota and plants; the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora; for offences and penalties for contravention of the Act; for the appointment of nature conservators to implement the provisions of the Act; and, finally, for the issuing of permits and other authorisations Western Cape Western Cape Planning and Development Act 7 of 1999  Operational: Not yet  Certain principles are found under “General Planning and Development Principles”, including Principle 6, entitled “Principles of Sustainable 2.2.2.4 Legislation of Municipal Countils (Bylaws) - Local bylaws are adopted by the elected municipal councils - Bylaws apply within a specific area, have to satisfy requirements of Constitution, parliament & provincial legislature - Section 156(3) -: a bylaw is subject to the national and provincial legislation - Section 152 (1) of the Constitution the objects of local government -: o Provide democratic and accountable government for local communities o Provide services for communities in a sustainable manner o Promote social and economic development o Promote safe and healthy environment o Encourage communities and community organizations to become involved in local government - A municipal council may make bylaws in terms of section 156(2) of the Const. on local government matters listed in part B of Schedules 4&5. - The environment is therefore a functional area which is shared by the three spheres of government 2.2.2.5 Delegated Legislation - Aka subordinate legislation - Delegated legislation is legislation that is promulgated by a body of the executive authority in terms of original legislation, while original legislation is promulgated by the legislative authority. - Legislation promulgated-: action of legislation becoming public – Gazetted etc. - Executive Authority-: those whose function is to make and implement the law - All legislation: has to be updated regularly - Done by amendments which are incorporated into legislation 2.2.3 Case Law (Court Decisions) - Legislative authority -: makes law - Executive authority-: implements law - Judicial authority -: administers justice by interpreting and applying legal rules to resolve legal disputes - Separation of Powers -: the powers of the state are separated (i.e. above), done to avoid abuse of power. Ensures that the power of each branch of state is controlled. - The constitution sets out the structure of the judiciary and the judiciary system: Part B of Schedule 4 lists, inter alia, the following topics on which a municipal council may legislate (make bylaws): air pollution, municipal planning, and domestic waste water and sewerage disposal systems. Part B of Schedule 5 lists, inter alia, the following topics on which a municipal council may legislate: noise pollution, refuse removal, refuse dumps and solid-waste disposal. 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 5 Main courts: The Constitutional Court -:  Final say in constitutional matters  Can declare legislation as invalid (according to Const.) The Supreme Court of Appeal -:  Can hear constitutional matters but not have final say High Courts (higher)-:  Can hear constitutional matters but not have final say - Courts are divided into ranks according to a hierarchy - Lower courts must follow decisions of the higher courts, all courts are bound by decisions of the Const. Court. - The precedent system is also used for case law reporting (the writing down of cases) - The cases of higher courts are reported on in different law reports – o Decisions from magistrate’s court are not published but records are kept. o Records include:  Facts of the case,  Various arguments by lawyers  Reasons upon which the court made its decision o This creates a precedent and will bind lower courts dealing with the same kind of disputes - If there were no legislation on a subject, one would look at the previous court decisions on the matter. - Page 33-34 -: example case Fuel Retailers Association of Southern Africa v Director-General Environmental Management , Dept. of agriculture, Conservation and Environment, Mpumalanga Province and Other 2007 10BCLR 1059 (CC) 2.2.4 Common law o Common law is “unwritten law” – not contained in legislation or decisions of the courts o Environmental Management law was derived from English law, part of the common law o Requirement: decision-makers should follow a fair procedure – natural justice – and the rules of natural justice. o Audi alteram partem-: to hear the other side o Nemo iudex in sua causa -: no one may be the judge of his/ her own case o Rules of natural justice are contained in -: o Section 33 of the Constitution o Sections 3 & 4 of the Promotion of administration Justice Act 3 of 2000 (PAJA) 2.2.5 Customary Law (indigenous) o Largely unwritten law o Recognised as a source of law by the Constitution & must be applied by courts where applicable o Many rules and regulations have been developed and incorporated into legislation 2.2.6 Other Sources o Environmental degradation transcends state borders – this emphasises the role of international law in environmental issues o International cooperation is essential o SA is party to many international and regional treaties that require cooperation with other nations Antarctica Treaty Protection of the continent and its resources Convention on International Trade in Endangered Species of wild fauna and flora (CITES) The protection of endangered wildlife (flora and fauna) o A treaty is a written agreement between states and is a source of international law – a state is bound once a treaty is signed o Section 39 of Const. deals with the interpretation of the Bill of Rights and provides that international and foreign law must be considered – used for guidance 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 6 o Section 233 of the constitution provides that in interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over an inconsistent alternative. Learning Theme 3 – Legal framework for protecting and managing the environment 3.1 Introduction - Over the past 50 years, humans have changed ecosystems more rapidly and extensively than any other time in history - Direct result of demands from population growth and development - The relationship between humans and their environments is complex and of central importance 3.2 The Term “Environment” - “environment” is a dynamic concept and may change over time – it may differ from country to country - The United Nations has been on the forefront of international discussions and there has been agreement to utilise international legal instruments by many nations. E.g. CITES / Convention on Biodiversity Environment -SA Definition Broad Includes natural, spatial, social environment May be too broad, virtually includes everything that influences human existence/ quality of life Narrow Natural environment excluding the social env. Too narrow because much of the natural environment has been changed by humans - The broad definition means that all law and policy could be classified as environmental law and policy because they deal with human existence. The narrow policy does not allow for environments which have been changed by humans. - The most recent definition of “environment” appears in section 1 of NEMA -: “[E]nvironment means the surroundings within which humans exist and that are made up of (i) the land, water and atmosphere of the earth; (ii) micro-organisms, plant and animal life; (iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and (iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and wellbeing.” 3.3 Environmental Law - Law relating to the environment is a cross-divisional field – incorporating the norms and principles of public, private and international law - SA’s modern branch of law therefore main source of info is legislation - Topics in environmental law: pollution control (air, water marine), waste management, protection of natural resources, land development and planning - These topics are under control of different government departments and legislation is often fragmented and conflicted - Under the constitution and introduction of sustainable development – there has been a more holistic view to environmental governance - NEMA – framework legislation based on integrated environmental management principles 3.4 Land-use Planning and Management - Land use planning and management are concerned with the determination, allocation and alteration of land uses and land planners should strive for harmony, efficiency and quality of life. - Land use, planning and management have an impact on the environment and our socioeconomic, cultural and political lives. - Land use planning and management are interrelated, environmental considerations are a priority. - Law governing Land-use planning and management -: est. August 2013 Spatial Planning and Land Use Management Act (SPLUMA) 16 of 2013 o All planning law was rationalised & aligned to the constitution - Objectives (s3): (a) “provide for a uniform, effective and comprehensive system of spatial planning and land use management for the Republic; (b) ensure that the system of spatial planning and land use management promotes social and economic inclusion; (c) provide for development principles and norms and standards; 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 7 (d) provide for the sustainable and efficient use of land; (e) provide for cooperative government and intergovernmental relations amongst the national, provincial and local spheres of government; and (f) redress the imbalances of the past and to ensure that there is equity in the application of spatial development planning and land use management systems.” 3.5 Principles of Environmental Management - NEMA – extended list of principles in section 2 – sourced from international law and the constitution - “The principles are detailed and complex and provide limitless potential for decision-makers and the courts to develop a cohesive body of generally acceptable environmental management practices” - In terms of section 2(1) of NEMA, all actions of organs of state that may significantly affect the environment have to be in line with the principles in section (2,3,4). - Section 2(1) states further that these principles must: (a) apply alongside all other appropriate and relevant considerations; (b) serve as the general framework for environmental plans; (c) serve as guidelines by reference to which any organ of state must exercise any function when taking a decision in terms of NEMA or other Act concerning the environment; (d) serve as principles by which a conciliator must act; and (e) “guide the interpretation, administration and implementation of this Act, and any other law concerned with the protection or management of the environment”. - Section 2 (2) and 2 (3) contains principles dealing with sustainable development, and a further eighteen principles ((a)–(r)) are set out in subsection (4). - Principles are sometimes referred to as “emerging” however they all have been included in SA environmental legislation and thus form part of our law. 3.5.1 Sustainable Development - Sustainable development: o First used in 1972 United Nations Conference on human environment o 1987 Brundtland Report (report of the World Commission on Environment and Development entitled – Our Common Future) o Sustainable development = economic development which meets the needs of the present generation without compromising the ability of future generations to meet their own needs. o Preservation of natural resources for the future – intergenerational equity - Term has emerged within the context of environmental degradation. - Environmental Degradation: leads to a reduction in the quality of life for all people - Rio Declaration -: o Not legally binding o Almost 200 countries committed to sustainable development and the implementation of Agenda 21 - Central idea: the enhancement of the social, economic and biophysical environment by the progressive elimination of current degradation on the one hand and the promotion of existing sustainable activities on the other. Three Pillars Economic Growth Social upliftment Conservation of the environment There must be a balance of these three pillars. - Long term development we need to look at the relationship between humans & their environment holistically. - Sustainable development is a key component of Section 24 of the Constitution and is the basis of the integrated management system as provided for in NEMA - NEMA S1 -: the integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations. 3.5.2 The Polluter pays “Principle” - Central Idea: the costs of pollution should be borne by the generator of the pollution rather than society at large - Adopted in SA – included in Section 2(4)(p): The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment. 3.5.3 The Precautionary Principle - Calls for an application of preventative measures in situations of scientific uncertainty where a course of action may cause harm to the environment. - Included in NEMA – Section 2 (4)(a)(vii) A risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions. 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 8 3.5.4 The Preventative Principle - Requires that environmental degradation should be prevented - Not regarded as an absolute principle as pollution will never be completely prevented. - Relevant factors: whether development is socially, environmentally and economically sustainable - Included in NEMA – Section 2(4)(a)(viii) [T]hat negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied. 3.5.5 The Duty of Care to avoid Harm to the Environment - Provides for a duty to act with due care in order to avoid damage to the environment - NEMA (s2 (4) (a) (i)-(iv)) recognises that absolute prevention of env. Degradation may not always be achievable: “Sustainable development requires the consideration of all relevant factors including the following: (i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (ii) that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (iii) that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided , or where it cannot be altogether avoided, is minimised and remedied; (iv) that waste is avoided, or where it cannot be altogether avoided, is minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner.” 3.5.6 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 - Public-trust doctrine is found in one of the principles of NEMA 2 (4) (o): 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. - Public-trust doctrine adopted in SA resembles “trusteeship” rather than public trust. (Kidd) - Trusteeship: entails that the trustee should protect the environment on behalf of future generations. Learning Theme 4 – The impact of the Constitution on Environmental Management 4.1 Introduction - The constitution provides for cooperative government and intergovernmental relations 4.2 4.2.1 Cooperative government and intergovernmental relations Constitutional provisions - Government = three independent and interrelated spheres of government which are obliged not only to cooperate with one another, but respect each other’s unique character – chapter 2 constitution - Meaning – the functions of government are exercised by national, provincial and local spheres with the intention of uniting the spheres – the decentralisation of power - National and provincial legislatures work together, but, provincial legislation will be enforced in the case of typical provincial planning, environmental and conservation matters - Municipalities also have legislative powers and adopt/ administer bylaws to regulate local planning and environmental management - The cooperative relationship also demonstrates that government no longer functions at different hierarchical levels - Const. s (41) provides that all spheres of government must cooperate with one another in mutual trust and good faith. - to achieve balance, weaker spheres of government must be developed so that they can contribute meaningfully to the partnership. 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 9 4.2.2 NEMA and Cooperative environmental Governance - Using NEMA the state endeavours, inter allia, to develop a framework for cooperative environmental governance. - NEMA, chp. 3, provides for procedures for cooperative governances, comprising a programme of environmental management plans and implementation plans that the entire environmental administration has to comply with. - Provinces & relevant dept. need to ensure that these plans are consistent and in use. - Purpose of environmental management & implementation plans: o Coordinate and harmonise the environmental policies, plans, programmes and decisions of the various listed national departments and of provincial and local spheres of government. This must be done to minimise the duplication of procedures and functions and to promote consistency. o give effect to the principle of cooperative government in Chapter 3 of the Constitution o secure the protection of the environment across the country as a whole o prevent any unreasonable actions by provinces in respect of the environment that are prejudicial to the economic or health interests of the other provinces or the country as a whole - Chapter 5 – gives effect to cooperative governance: o Provision is made for the establishment of a central point (competent authority) in each province to deal with applications, authorisations and licences in a coordinated manner. o Section 24(4)(a) stipulates that, in every application for an environmental authorisation, there must be coordination and cooperation between organs of state in the consideration of assessments where an activity falls under the jurisdiction of more than one organ of state. o Section 24(4)(b) stipulates that every application for an environmental authorisation must include, where applicable, an investigation and an assessment of the impact of any proposed listed or specified activity on certain national estates in terms of the National Heritage Resources Act 25 of 1999. o Section 24K provides for consultation between competent authorities where authorisation is required in terms of NEMA and in terms of other legislation in order to coordinate the respective requirements of such legislation and to avoid duplication. o Section 24L provides for the alignment of environmental authorisations. If the listed or specified activity is also regulated in terms of another law or specific environmental management Act, the authority empowered under that other law or specific environmental management Act to authorise that activity and the competent authority empowered under NEMA in respect of that activity may exercise their respective powers jointly by issuing either separate authorisations or an integrated environmental authorisation. 4.3 Democratic values and principles in the administration of the environment - Constitution (Chp 10, s 195 (1)) provides that the entire public services is obliged to comply with the basic values and principles of the Constitution - Public Services: ALL State Departments and their Functionaries in ALL spheres of Government - Values & Principles: a) A high standard of professional ethics must be promoted and maintained. b) The efficient, economic and effective use of resources must be promoted. c) Services must be provided impartially, fairly and equitably and without bias. d) People’s needs must be responded to, and the public must be encouraged to participate in policymaking. e) Public administration must be accountable. f) Transparency must be fostered by providing the public with timely, accessible and accurate information. 4.4 4.4.1 The Bill of Rights Introduction - Bill of Rights -: Chapter 2 of the Constitution - Contains: fundamental rights recognised and protected by international law & legal documents of Constitutional democracies - The cornerstone of SA’s democracy affirming the democratic values of Human dignity, equality and freedom.